Wyble v. State , 140 Tex. Crim. 123 ( 1940 )

BEAUCHAMP, Judge.

The appeal is from a fine of $100.00 assessed by the County Court of Jefferson County for a violation of the liquor laws.

It is alleged in the complaint and information that appellant had in his possession “an illicit alcoholic beverage containing more than one-half of one per cent of alcohol by volume,” etc.; that it was in a container to which no tax stamp showing the payment of the tax on said beverage due to the State of Texas was affixed, and to which there was no valid evidence showing the payment of the tax on said beverage to the State of Texas. The further formal allegation is made that such tax is due.

This complaint and information has been approved in the case of J. M. Austin v. State, No. 20,951, recently decided but not yet reported.

The State’s evidence is to the effect that appellant lived with his family consisting of his wife and several children at 812 Miller Street in the city of Beaumont. On or about the 29th day of September, 1939, five officers, with a search warrant, went to the premises and there discovered in the bath room of the appellant’s house several gallons of whisky in a container to which no stamp was attached and there was no evidence showing payment of the tax due to the State of Texas. The whisky was transferred into other containers and consisted of about six gallons which were brought into the court room and introduced in evidence in the case.

Some exceptions were taken and presented in the record in a manner which raises a very doubtful question as to whether or not they should be considered by this court; however, the only one giving serious consideration relates to testimony concerning the number of the house searched and whether or not it corresponded with the number given in the search warrant. Appellant on the witness stand admitted this number to be correct and all evidence regarding the same became immaterial. There is nothing in the procedure or in the jury’s verdict to indicate that this evidence was in any way prejudicial.

There is but one bill of exception which complains of the ruling of the court in admitting the evidence of the officers as to the things they found in the private residence of the appellant. This, is based upon the contention that the search warrant produced was illegal; first, because it does not describe the residence to be searched. On this point, it is described as 812 Miller Street in the city of Beaumont, and being occupied by the appellant. We are unable to see the point of objection in this respect. It is further objected that the correct number of the house was not given. All of the evidence, both for the State and the defendant, on this subject gives this number and we are unable to see the basis of this objection.

The third objection is that the search warrant purports to be based merely upon information and belief and that no facts are recited which would authorize the issuance of such warrant, it being contended that the statement that the affiants “received reliable information by a trustworthy citizen of Jefferson County, Texas, that liquor was being kept at the premises described” does not comply with the requirements of the statute and that the facts should all be stated showing what information they did receive. This question has been recently considered in a number of cases adhering to the long line of decisions, and we think the court should not be required to write on it at this time. The contention is not sustained.

The questions of fact in the case, as testified to by the witnesses for the State, are strongly denied by the appellant, his wife and two sons, each of whom stated that the officers came to the house on the night alleged and made a search of the premises but went away without finding any liquor; that for some reason unknown to them they arrested the appellant and took him to jail that night out of a sick bed. They denied that the liquor or the containers were found in the search. These are questions of fact upon which the jury has passed and of which this court has no jurisdiction.

No error being shown on the trial of this case, the judgment is affirmed.