Ortis v. State

Conviction for manufacturing intoxicating liquor; punishment, two years in the penitentiary.

A group of officers went to appellant's house and found him at home. They were armed with a search warrant, but without telling appellant they had same, he was asked if he would permit them to search the house, and, according to the testimony of the State, replied that it was all right. One of the officers wished to know if it was all right with his wife, and appellant asked her in Spanish, and then informed the officers that it was all right with his wife. The search revealed a still and a large quantity of intoxicating liquor.

There are two bills of exception, one complaining of the admission of the testimony of the officers upon the ground that the affidavit for search warrant was insufficient, same having been made upon information and belief. We deem it not necessary to go into the merits of a discussion of this objection, or an analysis of the contents of the affidavit for search warrant, there being no dispute over the fact that appellant gave the officers permission to enter and search his premises.

The other bill of exception complains of the failure of the court to submit the law of circumstantial evidence. The still and liquor were in appellant's house at the time of the search. He was present, and no other person was there save appellant's wife and some small children. We do not think it was necessary for the court to charge on circumstantial evidence. Johns v. State, 100 Tex.Crim. Rep., 271 S.W. 926; Jenkins v. State, 99 Tex.Crim. Rep., 270 S.W. 852.

No error appearing, the judgment will be affirmed.

Affirmed.

Hawkins, J., absent.

ON MOTION FOR REHEARING.