Motions for rehearing appear in the record made, one by the state seeking the setting aside of the judgment of reversal in the case of appellant Ross, and one by the appellant Brooks seeking the setting aside of the judgment of affirmance against him. *Page 196
Inspection of the record leads us to conclude that we erred in reversing the case of appellant Ross. Reversal was ordered because of error in the admission of testimony of the officers concerning what they found upon said appellant's premises and in his possession on the occasion of a search made by them, our conclusion being predicated on the fact that the affidavit for search warrant was based on the belief of the affiants. We overlooked the fact that in his own testimony appellant Ross swore that the same things were found by the officers on said premises, which they in their testimony claimed to have found. In such case we have held in a number of recent opinions that the error in the affidavit is rendered harmless and that the fact that the court admitted testimony of the officers as to what they found upon a search under the warrant issued upon such affidavit in such case presents no reversible error. McLaughlin v. State, 4 S.W.2d 54; Davis v. State, 7 S.W.2d 96; Sifuentes v. State, 5 S.W.2d 144. We observe that appellant Ross took the stand and testified that the mash, the four hundred pounds of sugar and the paraphernalia for making the still were at his place the night he was arrested. The judgment of reversal as to appellant Ross is set aside, the state's motion for rehearing is granted, and the judgment is now affirmed as to said Ross.
We have carefully considered the motion of the appellant Brooks. He was at the place in conjunction with Ross on the night of the alleged raid, and his connection with the sugar, etc., being shown by other testimony, we are unable to conclude the jury without sufficient testimony as to his guilt. As to appellant Brooks, his motion for rehearing will be overruled.
Affirmed.
ON MOTION FOR REHEARING.