Opinion
No. 11917.
Delivered October 31, 1928.
1. — Possessing Intoxicating Liquor — Bill of Exception — Incomplete. Presents No Error.
Where a bill of exception complains of the admission of the testimony of officers as to the result of a search, upon the ground that the affidavit upon which the search warrant was based was not sufficient and the bill does not set out the affidavit and search warrant or its substance, it follows that such bill fails to show error. See Fisher v. State, 1 S.W.2d 301.
2. — Same — Continued.
Where a bill of exception complains of statements admitted that were made to the sheriff by a witness on the ground that same were not made in the presence of appellant such bill is insufficient. A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. See Branch's Ann. P. C. Sec. 209, p. 134. Buchanan v. State, 298 S.W. 569.
Appeal from the District Court of Wilbarger County. Tried below before the Hon. Robert Cole, Judge.
Appeal from a conviction for the possession of intoxicating liquor for the purpose of sale, penalty one year and three months in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
The offense is possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for one year and three months.
Operating under a search warrant officers discovered in appellant's room approximately four gallons of whiskey. Appellant was in the room at the time the search was made.
Bill of exception Number 1 complains of the admission of the testimony of the officers, the ground of objection being that the affidavit upon which the search warrant was based was insufficient. The affidavit and search warrant are not set out in the bill. The substance of said instruments is not given. It follows that the bill fails to show that error was committed. Fisher v. State, 1 S.W.2d 301.
Bill of exception Number 2 complains of the action of the court in permitting the negro porter to testify that he told one of the officers that he could get some whiskey in appellant's room. It is stated as a ground of objection that the conversation had between the officer and the porter was out of the presence and hearing of appellant. There is nothing in the bill to verify the truth of the objection. A mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. Branch's Annotated Penal Code of Texas, Section 209, page 134; Buchanan v. State, 298 S.W. 569.
Finding no error, 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.