Moten v. State , 121 Tex. Crim. 204 ( 1931 )

We find it unnecessary to write upon the question as to whether evidence discovered by reason of a search made with the wife's consent is receivable against the husband. To our minds, the case turns upon other points.

The officers were properly permitted to detail what was found in the search of appellant's house on the ground that a felony was being committed in their view. They were lawfully at the house in search of a party for whom they held a warrant of arrest, and who, according to their information, had spent the preceding night at appellant's house. While legally there for the purpose mentioned the officers, through a window, saw a small girl hiding the whisky under the bed. Upon that ground the search was justified. Banks v. State, 112 Tex. Crim. 119,14 S.W.2d 280; which cites many cases; Hayes v. State, 115 Tex.Crim. Rep., 28 S.W.2d 556; Clark v. State,

117 Tex. Crim. 153, 35 S.W.2d 420. The latest case is Taylor v. State, 120 Tex.Crim. Rep., 49 S.W.2d 459, opinion handed down April 27, 1932.

We discover no impropriety in permitting the officers' testimony as to certain statements made by appellant's wife at the time of the search. They were directly impeaching of the evidence given by her on the trial. What she said to the officers, of course, could not be properly used as original evidence against appellant, and if the court's attention had been called to it he would doubtless have properly limited it to impeachment purposes. We cannot regard the failure to instruct the jury regarding the use of such evidence as fundamental error calling for reversal.

Overruled.