The appeal was dismissed because of a defective recognizance. It is now made to appear that the apparent defect was by reason of an inadvertent omission in copying the recognizance in the transcript. The appeal is re-instated and the case will be considered on its merits.
Officers armed with a search warrant found in appellant's residence several gallons of whisky, and a number of empty bottles. When they entered the house appellant broke some of the containers. Appellant did not testify, but his wife gave evidence to the effect that the whisky was in the house for her use as medicine; she further testified that the officers told her they had no search warrant. No search warrant or affidavit went before the jury, but a search warrant was evidently present at the trial because the return on it appears to have been examined by the witness making it to refresh his memory as to the result of the search.
Bill of exception number one shows that after one of the officers testified that he had a search warrant when he went to appellant's house appellant desired to interrogate him as to what information he had to determine whether "probable cause" existed for issuance of the warrant. This bill reveals no attack upon the warrant or the affidavit therefor, but seems to have been an effort to go behind them, which the court would not permit. In this ruling the court was following precedents. See Ware v. State, 110 Tex.Crim. R., 7 S.W.2d 551; Rozner v. State, 109 Tex.Crim. R., 3 S.W.2d 441; Stanzel v. State, 18 S.W.2d 158; Harris v. State, 15 S.W.2d 1048; Bird v. State, 110 Tex.Crim. R., 7 S.W.2d 953. *Page 65
In bill of exception number five appellant urges objection to certain testimony of one of the searching officers, the ground of his objection being based on certain claimed defects in the affidavit and warrant, which are stated as grounds of objection only. The bill recites that said affidavit and warrant are set out in bill of exception number one. The record does not so appear. Without having the affidavit and warrant before us we cannot review the question attempted to be raised.
All other bills of exception found in the record have been examined; none of them in our opinion presents error.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.