Starbeck v. State , 53 Tex. Crim. 192 ( 1908 )

This case was affirmed at the Dallas Term and now comes before us on motion for rehearing.

Especial complaint is made that the court erred in admitting in evidence the testimony of G.G. Flournoy to the effect, in substance, that on the 2nd day of April, 1907, he had searched the place of business of appellant and found therein a twenty-gallon keg with four or five gallons of whisky in it, and that at the time defendant made the statement that this property belonged to him and had been there for some time. It is claimed that this testimony was not admissible and reliance is had on the case of Parish v. State, 48 Tex.Crim. Rep.; 89 S.W. Rep. 830; Harris v. State, 50 Tex.Crim. Rep.; 98 S.W. Rep. 842; O'Shennessy v. State, 49 Tex.Crim. Rep.; 96 S.W. Rep. 790. An inspection of the record shows that the sale of liquor charged and undertaken to be proved in this case, was on the 30th day of March, 1907. The possession by appellant of the whisky, as shown by the witness objected to, was on April 2, 1907, three days thereafter. It was proven by the admission of appellant that this whisky had been in his house for some time. The testimony of the witness, Joe Milstead, asserted a sale made by appellant. Such sale was denied by appellant who became a witness in his own behalf. This testimony under the ruling of this court in the case of Wagner v. State, not yet reported, and under the authority of the case of Myers v. State, 52 Tex. Crim. 558; 108 S.W. Rep. 392, was admissible. On the last cited case the authorities relied upon by appellant are in express terms overruled. The motion for rehearing is denied.

Motion denied.