Davis v. State

Objections to testimony of what was found by officers upon a search, made upon questionable authority, such as a defective affidavit, would be of no avail to the accused when the same evidence, in substance, is properly before the jury from some other source. Stone v. State, 113 Tex.Crim. Rep., and authorities cited.

Without debating the sufficiency of the affidavit, we observe that the sheriff testified that his search of appellant's house resulted in finding four half gallons of whisky in a black suitcase or hand bag in a closet. Appellants' wife testified for the defense that she was present when the officers found the whisky in the hand bag in the closet mentioned. The above case and those therein cited and many others are pointedly decisive against appellant's contention. The Kelsey case,109 Tex. Crim. 275, 4 S.W.2d 548, does not hold otherwise. In that case there was a defective affidavit. The searching officer testified to finding two batches of whisky; one in the house, the other in the yard. The wife of the accused swore to being present at the finding of the whisky in the house, but knew nothing of the finding of the whisky in the yard. The jury in that case may have based their verdict on the testimony of the finding of the whisky in the yard, relative to which the wife gave no testimony, and in support of the finding of which the state had only the testimony of the officer as to the search made by him under a defective warrant. The error of the admission of testimony of the finding of whisky in the house was cured by the testimony of the wife; not so as to the whisky found in the yard.

We see nothing calling for discussion of the other two points made in appellant's motion. The evidence supported the judgment, and the court correctly rejected the testimony of the wife of appellant as to what Jack Boyd told her he had in his grip.

The motion for rehearing will be overruled.

Overruled.