Opinion
No. 23020.
Delivered January 10, 1945.
1. — Intoxicating Liquor — Evidence — Objection.
In prosecution for possession of intoxicating liquor for purpose of sale in dry area, objection to introduction of whisky in evidence on ground that affidavit for search warrant was insufficient because it did not show time of possession of liquor and by whom it was possessed, could not be considered where affidavit for search warrant was not contained in record.
2. — Argument — Defendant's Failure to Testfy.
Argument of county attorney that if accused did not have whisky in his house for purpose of sale "why did he have it concealed in a place where it took the officers 15 minutes to locate it," and that one who has legitimate liquor in his house is not apt to keep it in a well-concealed place was legitimate argument based on evidence and was not objectionable as reference to failure of accused to testify in his own behalf.
Appeal from County Court of Comanche County. Hon. H. H. Lockridge, Judge.
Appeal from conviction for having possession of intoxicating liquor for purpose of sale in a dry area; penalty, fine of $400.00.
Affirmed.
The opinion states the case.
J. M. Parker, of Gorman, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Appellant was charged with the possession of intoxicating liquor for the purpose of sale in a dry area and assessed a fine of Four Hundred Dollars.
The Sheriff of Comanche County in company with a representative of the Liquor Control Board, obtained from the Justice of Peace a search warrant for the purpose of searching the two room residence of appellant and his wife. When they reached the house no one was at home but the door was unlocked and they entered, first finding one pint of whisky and then, after the arrival of appellant's wife, they found nine pints of whisky secreted over a window. The whisky was introduced in evidence over the objection of defendant, as shown by Bill of Exception Number One. The objection was made on the ground that the affidavit for the search warrant was insufficient, that it did not show the time of the possession of the liquor and by whom it was possessed, "and that said objection was made to all of the evidence offered on the grounds of the insufficiency of the affidavit and the search warrant, and that the evidence was illegally obtained." We do not find the affidavit for the search warrant in the record and are unable to appraise the objection so made. Furthermore, we can not say that all of the evidence objected to would be controlled by an improper affidavit because we are not able to determine just what evidence is included in that objection, nor do we know what the court's ruling would have been had the objections been made separately to each item.
The second bill of exception complains of argument of the County Attorney which, if made as stated in the bill, would appear to constitute error. However, the court qualified the bill by saying that no such statement was made but that the attorney did say: "If the defendant did not have the whisky in his house for the purpose of sale why did he have it concealed in a place where it took the officers fifteen minutes to locate it. One who has legitimate liquor in one's house is not apt to keep it in a well concealed place." This does not constitute a reference to the failure of the party on trial to testify in his own behalf and appears to be legitimate argument based on the evidence in the record.
Finding no error, the judgment of the trial court is affirmed.