Bennett v. State

BAKER, Judge.

The appellant was convicted in the District Court of Johnson County for the offense of unlawfully possessing »equipment for manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the state’s witnesses, J. D. Crawford and J. W. Booth, deputy sheriffs, searched the premises of the appellant and found buried in his back yard a copper still, and in his house a gas stove with four or six burners, and on said premises a coil. It was the contention of the state that the appellant had said equipment for the purpose of manufacturing intoxicating liquor, and. the state introduced evidence tending to show that said still and. coil had the odor of sour mash and the appearance of having been used for the purpose of manufacturing intoxicating liquor. The appellant defended upon the ground that he knew nothing of the, coil found in the cow shed, and that his wife claimed the still and had told him the day prior to the search of the premises by the officers that she put the still there; and further testified that the still belonged to his wife and that he knew nothing about it being on the premises until she so informed him, as above stated.

' The record discloses 7 bills of exception. Bills 1, 3, 4, 5 and 6 complain óf the action of the court in permitting the state’s witnesses to testify, over appellant’s objections, that the still or boiler in question smelled sour, like mash, and that the coil smelled like it had been used in cooking whiskey; appellant’s objections being based upon the ground that the witnesses were not qualified as experts to testify relative to said matters. We think the objections urged to this testimony went more to the weight than to the admissibility of the testimony, and should we be in error in so holding, the admission of same could not possibly have injured the appellant.

By bill of exception No. 2 complaint is made to the action of the court in permitting the witness, Crawford, to testify, over appellant’s objection, that the equipment found on said premises could be assembled and used for making intoxicating liquor. The objection urged to this testimony was that the witness was not qualified as an expert. The record discloses that the witness testified that he had never made any whiskey himself, but that he had seen it made, and we are of the opinion that no error is shown in the admission of this testimony.

Bill No. 7 complains of the action of the court in permitting the sheriff, Moreland, and the deputy sheriff, Roberts, to testify that about 10 days after the still and equipment in question had been found on appellant’s premises, and after he, appellant, had removed therefrom, they again examined said premises and found a trap door in one of the rooms and a barrel buried in the ground with two or three gallons of mash therein. This bill shows that there was no objection urged to said testimony when it was admitted, and that appellant, through his counsel, raised the question for the first time in his motion for a new trial, insisting that same was fundamental error. We are unable, to agree with this contention and are constrained to hold that appellant waived his right to object to the admission of said testimony by failing to object to same at the time it was offered.

After a careful examination of the entire record, and finding no error therein, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion by- the Commission of Appeals has been examined by the Judges of' the Court of Criminal' Appeals and approved by the Court.