Bevers v. State , 110 Tex. Crim. 612 ( 1928 )

Offense, the unlawful manufacture of spiritous intoxicating liquor; penalty, three years in the penitentiary.

On a farm east of Ft. Worth officers found two stills and fifteen vats, eight of them five hundred gallon vats. Whiskey was running out of one of the stills when it was found and the appellant was present and apparently operating the still. Appellant claims he leased a farm of about 220 acres from a tenant of the owner and thereafter subleased to one Haynes for the purpose of raising chickens the particular portion of the premises on which the still and whiskey were found. He claimed in his testimony that although he had subleased this still house and particular portion of the premises and was himself living at another and different house, he still had charge of all the premises in question.

Objection was made to all the evidence of the officers with reference to what was found on such premises because they were not armed with a legal search warrant. It is not thought necessary to detail particularly in what respects the search was claimed to be illegal, as the case may be disposed of upon the assumption that the search in question was in fact made without proper authority of law. The appellant himself took the stand and admitted the presence of a still and mash on the premises in question, claiming, however, that it belonged to his subtenant, to whom he had leased the premises in question, as detailed above.

If the appellant had subleased the premises searched, he was not in position to object to a search of same by the officers. "The right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not available to any one else." Cornelius on Search and Seizure, p. 62, Sec. 12; Purswell v. State, 294 S.W. 1107. The testimony is sufficient to support the conclusion that the premises searched were in the actual possession and control of appellant's tenant and he is not therefore in a position to make the complaint found in this record.

We are further of the opinion that appellant lost his right to complain of such search because he took the witness stand and testified to the presence of the still on the searched premises. It there was error in the admission of the testimony of the officers who searched the premises, same was rendered harmless by the admissions of the appellant, who testified to the same facts, though in more meager detail. See: Gurski v. State, 248 S.W. 353; Osborne v. State, 292 S.W. 240; McLaughlin v. State, 4 S.W.2d 54. This question has been so many times decided that we deem it unnecessary to further discuss it.

When the officers arrived at the still, appellant ran and was captured, whereupon he immediately refused to divulge his name to the officers. This fact was proven over objection of appellant that same was inadmissible because appellant was under arrest and unwarned at the time. Appellant was caught, according to the officers' testimony, in an act of violating the law. He was apparently operating the still and whiskey was running from the same. According to his own testimony, he was present at the still when apprehended by the officers. The statement complained of was in such close relation and juxtaposition in place and time to the offense charged as to make it res gestae of same and admissible. Green v. State,106 Tex. Crim. 335; Harrison v. State, 20 Tex.Crim. App. 387; Williams v. State, 89 Tex.Crim. Rep.; Newsome v. State,93 Tex. Crim. 622; Woods v. State, 87 Tex.Crim. Rep.. The courts have many times applied this rule both to inculpatory and exculpatory statements of the accused when a part of the res gestae, even though the party making such statements was under arrest at the time.

This disposes of all of appellant's contentions which we deem worthy of discussion.

Finding no errors in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.