Sherow v. State

Offense, the unlawful possession of equipment for the manufacture of intoxicating liquor; penalty, one year in the penitentiary.

This case was reversed on a former appeal for the erroneous admission of testimony touching the results of the search of the home, dwelling house and premises of appellant without a search warrant. See 290 S.W. 754. In the trial which resulted in the conviction from which this appeal is prosecuted the Court refused to permit the introduction of any testimony of the result of the search of appellant's home and dwelling house, but admitted all testimony with reference to what was found as a result of the search of the premises adjacent to and within a distance of from 150 to 200 yards of such dwelling house. This was upon the theory that such portion of the premises might be legally searched without a search warrant under our present search and seizure law.

The only point apparently relied on for reversal is the bill questioning the Court's ruling on the admission of testimony going to show that as a result of the search of appellant's premises at a distance of 150 to 200 yards from his dwelling house, whiskey, mash and equipment for the manufacture of intoxicating liquor were found by the officers. It is not necessary under the facts shown in this record to decide this question. However, a similar question has been very recently discussed in the case of Wolf v. State, No. 11705, appeal from Burnet County, not yet officially reported. The record on this appeal shows that appellant took the stand and himself testified to the presence on his premises of intoxicating liquor and equipment for the manufacture of same substantially as testified to by the officers. If there was error in the admission of the officers' testimony, same was rendered harmless by the admissions of appellant, who testified to substantially the same facts. It was said in Gurski v. State,248 S.W. 353:

"It is a rule of practice in this State that the erroneous admission of testimony is generally not ground for reversal where the same facts are proved by other testimony without objection." Wagner v. State, 53 Tex.Crim. Rep.. See also Osborne v. State, 292 S.W. 240; McLaughlin v. State, 4 S.W.2d 54.

Finding no errors in the record, the judgment is affirmed.

Affirmed.

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

ON MOTION FOR REHEARING.