Carwile v. State

On Motion for Rehearing.

HAWKINS, Judge.

The indictment was returned in April, 1933. It alleged that appellant possessed for the purpose of sale “spirituous, vinous and malt liquor capable of producing intoxication.” Appellant contends that, under the holding in Offield v. State (Tex. Cr. App.) 75 S.W.(2d) 882, decided October. 31, 1934, the indictment is bad. The holding in said case is misconstrued. It was expressly held therein that the sale, or possession for sale, of spirituous liquor capable of producing intoxication was, at the time alleged in the indictment, and is now, an offense anywhere in the state, so that part of the indictment in the present case which alleged the possession for sale by appellant of spirituous liquor capable of producing intoxication charged an offense. The proof showed the liquor involved was whisky, a spirituous liquor. If vinous or malt liquor had been involved, there would have been merit in appellant’s contention.

We are not able to agree with appellant’s proposition that the court committed error in admitting evidence of what witness Brown told the district attorney a short time before the witness was placed on the stand by the state. As we understand the record, appellant was resisting any evidence regarding the result of the search of appellant’s room, on the ground that the warrant only authorized a search of Brown’s residence. Appellant was claiming that he had a room rented from Brown, and was living there at the time the search was made; that it was therefore appellant’s residence, and the warrant did not authorize a search of appellant’s room.' Evidently the district attorney understood from his conversation with Brown that he would testify that appellant did not live at Brown’s house at the time of the search, but he testified directly to the contrary. The evidence Was affirmatively hurtful to the state, and doubtless caused the court to withdraw from the jury the evidence of what was found in appellant’s room as a result of the search. The court committed no error in permitting the state to impeach the witness in the manner and under the circumstances appearing.-

We deem it unnecessary to discuss other questions presented in appellant’s motion for rehearing. They appear to have been properly disposed of in our original opinion.

The motion for rehearing is overruled.