Cruze v. State , 114 Tex. Crim. 450 ( 1930 )

The affidavit for search warrant sufficiently described the premises to be searched under the following cases: McTyre v. State, 19 S.W.2d 49; Hernandez v. State, 4 S.W.2d 82; Watson v. State, cited in our original opinion.

Appellant's wife was a witness for him. If she was equally with him engaged in the illegal enterprise of possessing and selling intoxicating liquor, her purpose and motive as a witness would be affected by proof thereof. To show her interest in the enterprise, the fact that she destroyed the container of liquor found by the officers, was provable. Her acts as well as statements would be receivable under the res gestae rule. Baird v. State, 13 S.W.2d 832. This in addition to the reasons advanced in the original opinion, for the admission of the testimony regarding her breaking such jar of liquor.

The raiding officers found one McAllister under the influence of intoxicating liquor. Later they went to appellant's house, taking McAllister with them. A short distance from said house they gave McAllister two one dollar bills and two silver quarters with which he went to appellant's home, presently returning with a quantity of intoxicating liquor. Testifying, McAllister said he gave said money to appellant for the jar of whisky which he brought back to the officers. They went to appellant's house, arrested and searched him, and found in his pocket two one dollar bills and two silver quarters. The admission of testimony of these facts was clearly correct.

We have again reviewed the record in regard to the supposed error in the cross-examination of appellant's wife by the State's attorney, but have been unable to agree with appellant's contention as to same. She testified on direct examination that McAllister was at her home on two occasions before the one upon which he was accompanied by the officers. She admitted that on one of these occasions he got intoxicating liquor, but denied that he got same on the other. We fail to see the force of appellant's objection to her admission on cross-examination that she did not allow whisky to be kept in their house, that she would either pour it out or break it up. We perceive no reflection therein upon the credibility of the witness. We further fail to find in the list of exceptions to the court's charge any objection to the failure or refusal of the court to limit this testimony to the question of impeachment of the wife.

The motion for rehearing is overruled.

Overruled.