McDonald v. State

LATTIMORE, Judge.

Conviction for possessing whisky for purposes of sale; punishment, one year in the penitentiary.

By supplemental brief appellant insists that the indictment herein is insufficient in the light of our holding in the case of Bob Offield v. State, No. 16725, opinion handed down October 31, 1934*. The indictment in this case specifically charged appellant with- possessing for the purpose of sale, — whisky. In the court’s charge he submitted the case upon the pointed issue of guilt predicated upon the possession of whisky for the purpose of sale. An indictment charging the' manufacture, sale, transportation or possession of whisky is good anywhere in Texas under the present law, as was specifically held in the Offield case, supra.

Appellant complains by a number of bills of exception of the reception of testimony as to what was found in his possession as the result of a search of his service station, — the objection being founded upon various defects alleged to exist in the affidavit and search warrant. Examining the record, we note that appellant took the witness stand in his own behalf and admitted the presence of the whisky at the time and place covered by the testimony of the officers. His contention was that some parties had just come into his place with a car, one of whom was drinking, and that he knew nothing about how the whisky came to be in the place. He testified that he had never seen it until the officers had it. He admitted that he lived at the station “where the whisky was found.” He further testified that when the officers came and went into his house “I went on in and they had found the whisky, I believe, when I got in there. I did not know anything about the whisky being in there.”

Authorities are too numerous to need citation holding that complaints of the reception of evidence are of no avail where by other testimony the same evidence is put before the jury without objection.

By reason of the fact that the whisky was found in appellant’s home at which he was present, the case is not one of circumstantial evidence, and the court did not err in declining to submit same on that theory.

Not being able to agree with any of the contentions made by appellant, and finding no error in the record, the judgment will be affirmed.

Affirmed.

(* Reported on page 237 of this volume).