Plaintiff in error, hereinafter called defendant, was convicted in the county court of Cotton county of the unlawful possession of a still, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 60 days. *Page 21
The appeal in this court was dismissed on the 30th day of September, 1932, for failure to serve notice of appeal on the county attorney.
Defendant filed his petition for rehearing, and attached to the same a stipulation of the county attorney that notice had been duly served on him. The petition for rehearing was thereupon granted, and the case is now before this court for decision on the merits.
It appears from the record that the sheriff of Cotton county had a fugitive warrant issued in Texas for the arrest of one Arnold; that W. T. Stapp, one of his deputies, went to the Arnold place for the purpose of making the arrest, and was informed that Arnold was working for defendant on an adjoining farm; that Stapp went to defendant's farm; that defendant pointed out Arnold, and Stapp made the arrest; that, while going to the field to make the arrest, Stapp smelled whisky mash cooking, and could hear the roar of a gas burner; that, on returning with his prisoner, he went to a small outbuilding, and there found a still with liquor running from it; that defendant asked the officer to "just forget it," saying he had to make a living for his children.
It is contended that, since the officer was a trespasser on the premises of defendant, the search and seizure was illegal and the evidence inadmissible. There is no merit in this contention.
The evidence being sufficient to support the verdict of the jury, the cause is affirmed.
EDWARDS, P. J., and DAVENPORT, J., concur. *Page 22