Wofford v. State

Appellant again urges criticism of the affidavit upon which the warrant to search his house was predicated. After a further examination of it we fail to discover any defect as to description of property sought to be searched, nor any failure to state facts and information therein amounting to probable cause.

When the officers told appellant they had a warrant to search his house for whisky he said "look all you want to, you won't find any." An expression in our original opinion indicating that this was consent by appellant for the search is criticized as being in conflict with the holding in Dixon v. State,108 Tex. Crim. 650, 2 S.W.2d 272. We are inclined to think appellant is correct in his position under the facts here. See also Aguirre v. State, 109 Tex.Crim. Rep.,7 S.W.2d 75, and Monroe v. State, 110 Tex.Crim. Rep.,8 S.W.2d 133. The affirmance of the judgment, however, was not based upon a search made with consent. There was an express holding that the affidavit was legal.

The testimony appellant expected from his absent witnesses appears to be obnoxious to the rule against receiving "hearsay evidence." See Corpus Juris, vol. 16, sec. 1233. Aside from this, if the witnesses had been present and their evidence received it would not likely have changed the result of the trial in the absence of any claim by appellant that his possession of the liquor was for medicinal purposes. The concealment of the liquor in an unusual place, — the bottom of an upholstered chair — smacks of possession for a conscious illegal purpose rather than a legitimate possession for medicinal use.

The motion for rehearing is overruled.

Overruled.