McTyre v. State , 113 Tex. Crim. 31 ( 1929 )

CONCURRING OPINION. I concur in the opinion of Presiding Judge Morrow as to the legal questions discussed and the reversal of the judgment. In order to avoid any possibility of misunderstanding I think it is not improper to say that the officers observed appellant coming from the direction of a pasture between which and the house was a cotton patch; the officers testified that they "back tracked" appellant to a point within fifteen or twenty steps of where five barrels were found which had recently contained "whisky mash ready to run." Mash was still flowing on the ground where the barrels had been recently overturned. This was found in a pasture and the evidence regarding it was admissible without a search warrant. Wolf v. State,9 S.W.2d 350. Appellant did not testify but his wife gave evidence which made an issue as to whether appellant was coming from the place where the mash was found. The evidence which was improperly admitted as to finding in the outhouse jugs bearing the unmistakable odor of whisky could have been and doubtless was appropriated by the jury in determining that the mash was in the possession of appellant, and more particularly, the purpose for which he possessed it. This would prevent an affirmance of the judgment on the principle announced in Gurski v. State,93 Tex. Crim. 612; Turner v. State, 95 Tex.Crim. R.; Cartwright v. State, 97 Tex.Crim. R., and other like cases. The facts of the present case would call for the application of the recognized rule that the admission of illegal evidence material and pertinent to a controverted issue, and which is in addition to facts legally in evidence, is erroneous and hurtful and that a conviction under such circumstances should not be permitted to stand. See McWilliams v. State, 44 Tex. 116; Kelsey v. State, 4 S.W.2d 548, and authorities therein referred to. MODIFYING OPINION.