Opinion
No. 14126.
Delivered April 15, 1931. Reported in 37 S.W.2d 1038.
1. — Intoxicating Liquor — Procedure — Appeal.
Consideration cannot be given to points presented in appellant's brief but not brought forward by bills of exception.
2. — Intoxicating Liquor — Bill of Exception.
In prosecution for possession of whisky, the bill of exception complaining of a refusal to allow a witness to testify as to whether he had sworn to the affidavit for search warrant is defective, since the bill contains no information as to what the answer would have been.
3. — Search.
In prosecution for possession of whisky for the purpose of sale, where whisky was found about forty yards from appellant's home across a road in and near a canal, a search warrant was not required to make the search for and seizure of it lawful.
4. — Intoxicating Liquor — Bill of Exception — Res Gestae.
In prosecution for possession of whisky, the bill of exception complaining of the introduction in evidence of a disclaimer of ownership at the time the whisky was found is defective in not containing a statement of facts, certified by the judge that appellant was under arrest at the time the statement was made; besides, the evidence of the statement was admissible as res gestae.
5. — Intoxicating Liquor — Evidence.
In prosecution for possession of whisky, objection to the introduction of the affidavit and search warrant was properly overruled since no objection was urged to either upon the ground that the recitals therein were hearsay and prejudicial to appellant.
6. — Intoxicating Liquor — Sentence.
Where the sentence was entered in disregard of the Indeterminate Sentence statute, it will be reformed so as to conform to the provisions of that statute.
Appeal from the Criminal District Court of Cameron County. Tried below before the Hon. A. W. Cunningham, Judge.
Appeal from a conviction for possession of liquor for the purpose of sale; penalty, confinement in the penitentiary for eighteen months.
Reformed and affirmed.
The opinion states the case.
E. T. Yates, of Brownsville, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being 18 months in the penitentiary.
Officers armed with a search warrant found in appellant's yard in a hole about twelve feet from the back door of his house three quarts of intoxicating liquor. The containers had been broken. About twenty-five yards from the rear of the house in a basket which had been covered with clothes taken from a clothes line they found an assortment of liquor, consisting of nine and a half pints of whisky, one and a half pints of Habenero, three pints of Mescal and two and one-half pints of gin. Thirty or forty yards from the residence in the horse lot they found a five gallon can of alcohol buried in the ground. Across the road from appellant's house in and near a canal were found four sacks of miscellaneous intoxicating liquor, each sack containing two or three bottles. When the officers found the liquor across the road appellant, who up to that time had remained silent, said that particular liquor was not his, but that all they had found on his place belonged to him.
Appellant did not testify and offered no defensive evidence whatever.
In the brief filed for appellant we find many propositions advanced and questions suggested which are not raised by the bills of exception. We are necessarily restricted to a consideration of points brought forward by the bills.
Bill of exception No. 3 reflects that the court would not permit counsel for appellant to ask one of the affiants who signed the affidavit for the search warrant "if he actually swore to it before the justice of the peace, or if he merely signed it and the justice of the peace then put his jurat on it." We assume that by the question appellant was attempting to bring himself within the principle announced in Armstrong v. State, 107 Tex. Crim. 553, 298 S.W. 604; Moore v. State, 112 Tex. Crim. 142, 15 S.W.2d 617; Puga v. State, 112 Tex. Crim. 431, 17 S.W.2d 55. Unfortunately, the bill omits any information as to what answer was expected from the witness. In this respect it is fatally defective. See authorities collated in Branch's Ann. Tex. P. C., sec. 212, p. 136, and under note 1, article 667, Vernon's Tex. C. C. P., vol. 2.
Bill No. 4 recites that the state introduced a sack of liquor found in an uninclosed place some forty yards from appellant's house, over objection that such liquor was not covered by the search warrant nor proved to be appellant's. This liquor was found across a road in and near a canal at a point thirty-five or forty yards from appellant's house. No other person lived near there except appellant. His nearest neighbor was several hundred yards from the point where the liquor was found. The fact that appellant at the time it was found disclaimed ownership of it would not make its introduction erroneous. It was found so near appellant's house that under all the circumstances of the case it raised a reasonable inference that it belonged to him. Beside, no objection seems to have been urged to evidence of the fact that the liquor was found, but only against the introduction of the liquor itself. Unless we misapprehend the facts, the location of this particular liquor was such that the officers needed no search warrant to make the search for and seizure of it lawful. Wolf v. State, 110 Tex. Crim. 124, 9 S.W.2d 350; Greenwood v. State, 110 Tex. Crim. 478, 9 S.W.2d 352; Worth v. State, 111 Tex. Crim. 288, 12 S.W.2d 582. This discussion also disposes of bill of exception No. 6.
When the officers found the liquor in or near the canal across the road from appellant's house he made the statement that it was not his, but that all the other liquor which had been found belonged to him. Proof of his statement was objected to on the ground that he was in custody of the officers. This is stated as a ground of objection only. It is not certified in the bill that he was in custody. From an examination of the statement of facts we doubt if he was arrested until after he had made the statement mentioned. Even if he was in custody the statement appears admissible as res gestae.
No objection appears to have been urged to any evidence secured as a result of the search based upon the claimed defect in the search warrant or affidavit upon which it was predicated. Bills one and two reserve exception to the admission in evidence of the affidavit and warrant themselves. We have frequently held that where the sufficiency of the affidavit and warrant is questioned to admit evidence secured by a search thereunder they should ordinarily be exhibited to the judge in order that he may rule intelligently regarding the matter, and that statements and recitals contained in the affidavit or warrant are hearsay and should not be given to the jury. Gurski v. State, 93 Tex.Crim. Rep., 248 S.W. 353; Boortz v. State, 95 Tex.Crim. Rep., 255 S.W. 434; Gaunce v. State, 97 Tex.Crim. Rep., 261 S.W. 577; Broyles v. State, 110 Tex.Crim. Rep., 7 S.W.2d 555; McFarland v. State, 110 Tex.Crim. Rep., 7 S.W.2d 955; Booth v. State, 110 Tex.Crim. Rep., 9 S.W.2d 1032; Dillon v. State, 108 Tex.Crim. Rep., 2 S.W.2d 251.
Objections were urged to the introduction of the affidavit and warrant upon many grounds, but it does not appear necessary to discuss them. If the affidavit and warrant were defective it would not avail appellant to have objected to their admission save as the recitals therein might have been hearsay, and prejudicial to appellant. No objection was urged to either the affidavit or warrant upon this ground.
The punishment assessed against appellant was confinement in the penitentiary for eighteen months. In pronouncing sentence the court inadvertently failed to give effect to the indeterminate sentence law and directed that he be incarcerated in the penitentiary for the full term of the verdict. The sentence is reformed to direct his confinement in the penitentiary for not less than one year nor more than eighteen months.
As thus reformed, the judgment will be affirmed.
Reformed and affirmed.