Stansberry v. State , 107 Tex. Crim. 54 ( 1927 )

Conviction is for possession of intoxicating liquor for the purpose of sale, punishment being two years in the penitentiary.

Several special charges were requested and refused but no exception to the action of the court is noted on the charges over the judge's signature, nor is such exception brought forward by formal bills. Exception must be reserved in one form or the other. Linder v. State, 94 Tex.Crim. Rep.,250 S.W. 703; Nichols v. State, 91 Tex.Crim. Rep., 238 S.W. 232; Thomas v. State, 100 Tex.Crim. Rep., 273 S.W. 571.

In two bills appellant complains because witnesses were permitted to describe the liquor and other articles found in the shed-room of a vacant building known as the old "Downing store," which was situated between seventy-five and one hundred feet from the building occupied by appellant. Objection was urged on the ground that the search warrant did not include the Downing store. This was shown to be a vacant store building with a shed-room extending along one side. It was accessible to the public. A vacant lot was between it and the building occupied by appellant. He could not complain because the officers had no warrant to search the "Downing store." None of his property rights was invaded in doing so. He disclaimed the property found there. Craft v. State (9859, decided April 6, 1927, not yet reported); Wright v. State, 103 Tex.Crim. Rep.,281 S.W. 864; Dozier v. State, 289 S.W. 45.

If we understand bill No. 8 it presents complaint because a witness was permitted to testify that a certain five-gallon bottle of whiskey was found in the old Downing store, the objection being based on two grounds, one being that said store was not described in the search warrant. This objection has already been disposed of. The other ground of objection was that appellant had made a motion to exclude the testimony of finding liquor at any other place than that described in the search warrant. It has been held that a preliminary motion to suppress evidence is not recognized in our procedure. Foster v. State, 104 Tex.Crim. Rep., 282 S.W. 600.

Appellant makes serious complaint that certain argument of the District Attorney found no support in the evidence. The objectionable statement was in substance, that appellant claimed to be in the restaurant business in Crystal Falls, when there was as much necessity for a restaurant at that place as "there is for an ice factory at the north pole." The statement of facts shows that at Crystal Falls there was only a store or two, a filling station and the restaurant, which appellant claimed to be operating. It was evidently the state's contention that appellant's claim of operating a restaurant was only a blind to cover a business of selling whiskey. The observations of the District Attorney seem justified under the facts. From the court's qualification to another bill complaining of argument it appears to have been invited by counsel for appellant and presents no error.

The sufficiency of the evidence is challenged. Officers armed with a warrant to search appellant's place of business hurriedly drove up in front of it. Appellant ran into the back of the building and was followed by one of the officers who found him with an empty whiskey bottle in his hand. Upon a search of the kitchen several half-gallon fruit jars were found, some of them having the smell of whiskey in them, and also one or two whiskey glasses were there. No whiskey was found in the kitchen except a very small quantity in one of the fruit jars. A well-used and freshly beaten path was found leading from the kitchen door of appellant's building across a vacant lot to the shed-room of what was called the old "Downing store." In this shed-room the officers found two or three sacks of bottled beer and also found some in a five-gallon lard can in water which was still cold, but the ice had melted. Several cases of fruit jars were also found, in one of them was a half-gallon jar about half full of whiskey, and another half-gallon jar about half full of coloring matter; also there was found a five-gallon water bottle full of whiskey. The whiskey found in the kitchen of appellant's restaurant appeared to be of the same kind, color, and quality as that found in the shed-room. The fruit jars in the shed-room were the same kind as the few found in appellant's kitchen. The Downing store and shed-room in question were unoccupied and open in many places to the public. Evidence was noticeable that it had been used for "toilet" purposes by some, but the only plain or beaten path leading to this shed-room was from appellant's kitchen. Other signs indicated that parties had been in the shed-room coming from other directions, but no well-defined path was discoverable except the one mentioned. It was developed by appellant himself upon cross-examination of the state's witnesses that a former raid had been made upon his place by the officers, at which time appellant's conduct in running from the front of his restaurant to the back of it was the same as on the present occasion. In response to appellant's own question to one of the officers to state the exact reason he had gotten the search warrant for appellant's premises the officer answered that they had been getting lots of complaints against appellant and on the place from different parties, and this together with appellant's conduct on the previous raid was what caused him to ask for the search warrant. To hold that the jury was not justified in reaching the conclusion that appellant was in possession of the whiskey and articles found in the shed-room of the Downing store would be to discard the finding of the jury upon an issue which has support in the evidence.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.