Summary
finding mistrial not warranted after prosecutor read wrong one of two indictments against defendant when jury given instruction to disregard
Summary of this case from Miller v. StateOpinion
No. 12278.
Delivered February 6, 1929.
1. — Possessing Intoxicating Liquor — Trial in Court Below — Reading Wrong Indictment — Error Cured.
Where it appeared that there were two indictments pending against appellant and that when he went to trial the state's attorney read the wrong indictment, where upon discovering his error, he withdrew the indictment which he had read and read the proper indictment and the court instructed the jury not to consider same for any purpose, we do not think the incident would demand or warrant the reversal of the judgment.
2. — Same — Statement of Accused Under Arrest — Res Gestae — Properly Admitted.
Where officers had lawfully searched appellant's premises in his absence and discovered a complete still and five gallons of whisky therein and while still on the premises the appellant came in and there stated that the house was occupied by him and that the whisky found belonged to him, the statement was res gestae and properly admitted.
Appeal from the Criminal District Court No. 2 of Harris County. Tried below before the Hon. Langston G. King, Judge.
Appeal from a conviction for possessing intoxicating liquor for the purpose of sale, penalty one year in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Possessing intoxicating liquor for the purpose of sale is the offense; punishment fixed at confinement in the penitentiary for a period of one year.
In a certain house in the city of Houston, upon a search under a warrant, there were found various items of equipment for the manufacture of intoxicating liquor, including a 60-gallon still complete and in operation and a quantity of other articles such as flasks, jugs and other containers suitable for handling and distributing intoxicating liquor, also a quantity of whisky. When the officers arrived the appellant was not present. They waited for his return, and immediately upon his arrival had a conversation with him in which he admitted the ownership of the liquor and equipment and said that the whisky was made for the purpose of sale. The articles mentioned above were all upstairs in the house except five gallons of whisky which were found downstairs. In his testimony the appellant disclaimed the ownership of the property upstairs and claimed that it belonged to one Gomez. He denied that there was any whisky downstairs. According to the appellant's testimony, he had leased the entire premises, lived in the lower part of the house and had sublet the second story to Gomez. Upon his arrival at his home while the officers were there, the appellant said that he had in his car a small quantity of whisky, several bottles of beer and a number of empty flasks. He claimed that he did not know that Gomez was engaged in making whisky.
There are two bills of exceptions. In the first it appears that there were two indictments presented against the appellant growing out of the same transaction; that when the appellant went to trial the State's attorney read to the jury the wrong indictment. When the mistake was discovered the appellant asked the privilege of withdrawing his announcement and that the jury be discharged. In qualifying the bill the court states that upon discovering the mistake the State's attorney, in the presence of the jury, dismissed the indictment first read, and the court instructed the jury that the appellant was to be tried upon but one case and that the indictment first read in their presence must not be given any consideration by them. Taking note of the evidence adduced and the result of the trial, we think the incident mentioned does not demand or warrant a reversal of the judgment.
Bill No. 2 complains of the receipt in evidence of the admissions made by the appellant after he arrived at his premises and after the officers had discovered the whisky and equipment, claiming in effect that it constituted a declaration while under arrest; that its receipt was against the inhibition of the confession statute, Art. 727, C. C. P., 1925. In qualifying the bill the court states that the declarations were made immediately upon the appellant's arrival at the scene, where the liquor was present on his premises, and the still in operation, and that it was res gestae. This is in accord with our understanding of the statement of facts. The following cases are in point: Hall v. State, 293 S.W. Rep. 1112; Perkins v. State, 8 S.W.2d 167; Copeland v. State, 94 Tex. Crim. 112; White v. State, 278 S.W. Rep. 203; Blalock v. State, 281 S.W. Rep. 210; Taylor v. State, 278 S.W. Rep. 852; Mills v. State, 277 S.W. Rep. 1077.
The judgment is affirmed.
Affirmed.