DISSENTING OPINION. My brethren are reversing this case. I cannot agree to the reversal. My reasons follow. A statement of the facts is necessary in order that my reasons for this dissent may be thoroughly understood.
Appellant is a negro, and about a quarter of a mile from his house lived his brother, and in the community were other negro houses. Officers went to the home of Laura Jones on the morning of this occurrence, and had a search warrant to search her place. She told them that there was whiskey at appellant's place. The sheriff then wrote appellant's name in the search warrant which he had to search the place of Laura Jones. Whether this fact was known to the other officers does not appear. The party then went from Laura Jones' place to that of appellant. In his house they found some jugs tied together, freshly washed. No one asserted there was any odor or appearance of liquor about the jugs. Near appellant's smokehouse were found some fruit jars, also freshly washed. No one said there was any appearance or odor of liquor about these. On planks laid on rafters in appellant's kitchen the officers found two 35-pound sacks of meal and part of a sack of sugar. I have enumerated all that was found in the house or yard of appellant.
When the officers reached appellant's house he was observed coming from the direction of a well several hundred yards from his house. A trail led from the house to the well. Later, between the house and the well, at a point estimated at one hundred and fifty yards from appellant's house, nine gallons of whiskey were found near a stump. In a nearby branch the officers found two stills stated to be something like two hundred and fifty or three hundred yards from appellant's house and not far from the well. At no great distance from the stills were two barrels of mash. A trail, stated in testimony to be well beaten, led from appellant's house to the stills. Shortly after, seeing appellant down near the well, his wife was observed coming from where the stills were found with a bucket in her hand. There can be no dispute of these facts.
The state introduced in making out its case three deputy sheriffs who testified without objection that having a search warrant they searched appellant's house and found the jugs, jars, meal and sugar above referred to, also that they saw the trails mentioned, and saw appellant and his wife coming from the directions mentioned, and that they went down to the well *Page 664 and branch and found the whiskey, worm, mash and stills. They said the stills were three or four feet apart, each on a furnace, and were warm when found. After the introduction of said officers the state rested its case. Appellant then took the stand and denied owning or controlling the ground upon which the stills, whiskey, etc., were located when found. He said he bought his supplies through a Farmers' Union and got them in quantities because cheaper; also that he put the meal (which he said was flour) and sugar upon the rafters to keep same from the rats. He also testified that his wife had been making preserves and that the fruit jars referred to were for use in that connection.
After appellant had concluded his testimony his attorneys placed the sheriff on the stand and he testified for the defense to the fact that he inserted appellant's name in the search warrant which he had authorizing him to search the place of Laura Jones. From bill of exceptions No. 1 it appears that at this point appellant made a motion from which I quote as follows:
"To strike out and withdraw all of the testimony given in this trial by the witnesses C. V. Wellborn, Sam Gault and J. W. Green, for the reason that said testimony was procured by virtue of and under an illegal 'search warrant,' and was not proper and competent and legal testimony to go before the jury; whereupon the court overruled said motion."
Asserting that the refusal of this motion was error, my brethren reverse this case. To me nothing can be plainer than that the refusal of said motion was correct, and is in line with all our precedents and rules as well as what seems to be reason and justice.
It is true the sheriff wrongfully inserted appellant's name in the search warrant, but this could only taint those things thereafter done under said warrant, for which a search warrantwas necessary. To illustrate: If after wrongfully inserting appellant's name in the search warrant the sheriff had met the latter in the road with a pistol on his person, it would seem idle to contend that the officers could not testify to the unlawful carriage of the pistol, and the finding of same upon the person of appellant. The matter seems too plain for argument. If after wrongfully inserting appellant's name in said warrant the officers on their way to his house, while going through a pasture, had discovered a still being operated by appellant, it would not be contended that the error of the insertion of his name could be stretched to make inadmissible his presence at and operation of said still, on his trial for such operation. Precisely analogous and for the same reason appellant had no sort of *Page 665 right to have stricken out the testimony of the finding of the whiskey, stills, worm, etc., which he did not claim were on land owned or controlled by him.
Appellant's motion to strike out the testimony must be based on Articles 4a and 727a of the 1925 Cow. C. P., both of which were enacted by the Thirty-ninth Legislature. Article 4a forbids search without warrant of the private residence, actual place of habitation, place of business, person or personal possessions. Article 727a declares inadmissible evidence obtained in violation of law. It is well settled that he who interposes objection must support it by a showing of facts as well as making the objection. In this case not only does the record manifest an entire lack of showing in the bill of exceptions of the fact that the whiskey, mash, worm, stills, etc., were found in or on appellant's private residence, actual place of habitation, place of business, etc., but the further fact appears that he himself swore to the contrary.
I revert to the legal propositions. The motion to strike outall the testimony of the officers was clearly wrong because it embraced the exclusion of their testimony as to the finding of the whiskey, stills, mash, worm, etc., also their testimony as to seeing the trail leading from appellant's house to the stills, also the fact that appellant and his wife were seen coming from the direction where the stills, etc., were found, all of which testimony just enumerated would have been admissible if the officers had had no search warrant, or had had a search warrant which for any reason was illegal. In an appellate court such as this we always try to follow precedents as long as we believe them to be right. What I have just said is in line with what my Brother Hawkins quoted with approval in Vaughn v. State, 280 S.W. 772, which is as follows:
"A bill of exceptions is too general to be considered if it includes a number of statements some of which are clearly admissible, and there is nothing in the objection to directly challenge or single out the supposed objectionable evidence. Branch's Ann. Tex. P. C., Sec. 211."
See also Payton v. State, 35 Tex.Crim. Rep.; Gaines v. State, 37 S.W. 333; Tubb v. State, 55 Tex.Crim. Rep.; Bing v. State, 280 S.W. 827. Certainly we have no better settled rule than that one who presents a motion or makes an objection must so present same as that the trial court will have the very point of the matter before him; and as the matter was presented to him, so must it be brought here, and it must appear from the bill of exceptions before us that there was an error *Page 666 in the ruling complained of. This is recently discussed in Stanford v. State, 280 S.W. 798, my Brother Hawkins writing the opinion on rehearing. The same principle is involved in all those cases in which we have held that from the bill itself this court must be able to determine whether the matter objected to was erroneous or otherwise. Hennessy v. State, 23 Tex.Crim. App. 355; Huffman v. State, 28 Tex.Crim. App. 177; Wright v. State, 36 Tex.Crim. Rep.; Burt v. State, 38 Tex. Crim. 397; Kelley v. State, 43 Tex.Crim. Rep.. As said by my Brother Hawkins in Raglin v. State, 284 S.W. 548:
"A bill should be made so full and certain in its statements as that in and of itself it will disclose all that may be necessary to manifest the supposed error. See Section 207, Branch's Ann. Tex. P. C. The bills do not comply with this requirement, and we must presume the learned trial judge was correct in the ruling made."
And as said by my Brother Morrow in Banks v. State,282 S.W. 226:
"To require consideration, it is essential that the bill of exceptions be self-explanatory to a degree that will enable the court to determine from the bill alone whether in the ruling of which complaint is made error was committed.
My Brother Morrow cites many authorities in support of this proposition. As a matter of fact, I know of none in all the books to the contrary.
We also adhere uniformly to the rule that our presumption here must be in favor of the correctness of the ruling of the trial court until and unless the contrary is affirmatively shown, and when the complaint in question appears in a bill of exceptions, the showing of the error must be in the bill itself, which must state enough facts to manifest the error of the ruling excepted to. Cordova v. State, 6 Tex.Crim. App. 447; White v. State, 9 Tex.Crim. App. 42; Ballinger v. State, 11 Tex.Crim. App. 334.
I make a brief recapitulation. There was before the trial court testimony as to some things found in appellant's house which, upon proper objection, should have been stricken out, such as the finding of the jugs, meal and sugar in appellant's house. From the same witnesses there was also testimony of the finding of the whiskey, a worm, mash, stills, trails and appellant's and his wife's movements in coming from the direction of the stills which were not on his land (according to his testimony), which testimony should not have been excluded because same was admissible whether the officers had a search warrant *Page 667 or not. With all this testimony before the trial court, appellant moved to exclude all the testimony of said witnesses, for the sole reason that the search warrant was illegal. The trial court refused to grant the motion. For this my brethren reverse. I emphatically decline to reverse, holding that had appellant moved to exclude testimony only of what was found in the house, the motion would have been good and its refusal error; but that when he moved to exclude all the testimony of said officers his motion was not good because it comes clearly within the rules and said motion embraced material testimony whose admissibility was not in the least affected by the legality vel non of the search warrant. Because nothing in the motion, quoted above, points out or specifies the objection of appellant as being directed to those things found in his house, I am constrained to hold the action of the trial court correct. Also looking to appellant's bill of exceptions, I am constrained to hold, as it seems to me this court has always held, that such bill must state the facts relied on to manifest the error complained of, and I here further observe that said bill under discussion only sets up that the officers testified that they searched appellant's premises, and that the bill makes no reference as to what the officers found, if anything, or where they found it. This being true, I again state to hold such bill good is plainly obnoxious to all the rules referred to. I am unable to see how the trial court in the first instance, or this court on appeal, could know what appellant moved to strike out. To me it appears both that the trial court from the motion presented, and this court from the bill of exceptions appearing in the record, are left wholly in the dark. The trial court knew from the motion that they wanted him to strike out the testimony of the officers that they searched appellant's premises. This court knows from the bill of exceptions that they complained of the action of the court below in refusing to strike out the testimony of the officers that they searched his premises. If we adhere to the rule that the trial court obtained from said motion his knowledge of what testimony appellant referred to therein, and that this court obtained its knowledge of the same matter from the bill of exceptions, I again assert that neither court could know what testimony was referred to or that the same was erroneously obtained. The question might arise as to what was meant in the motion and bill of exceptions by the use of the word "premises." We said in Smith v. State, 99 Tex.Crim. Rep., that the word was so vague and indefinite as that a statute using same was obnoxious to our constitutional requirement *Page 668 that a statute be plain and definite. I further observe that in one part of said motion it is stated that the officers swore they searched the premises of appellant, and in another part of said motion that appellant moved the court to strike out all the testimony of said officers. The trial court's duty was to pass on the motion as presented, and this court's duty was to pass on the bill of exceptions as presented, and the trial court ruled correctly, and if for what appears in said bill of exceptions this court reverses, in my opinion we are gravely in error.
There is but one other bill of exceptions which was taken merely to the overruling of appellant's motion for new trial. Said motion was sworn to, but complains only of the insufficiency of the testimony and the supposed error of the court in refusing the motion to strike out the testimony which I have been discussing. Said motion derived not one jot or tittle or advantage by being sworn to, and unless there was error in the overruling of appellant's motion to strike out, manifested by the bill of exceptions which I have discussed, — or unless the evidence be insufficient, there is nothing further to discuss.
As to the sufficiency of the testimony, it would be easy to cite numerous cases where this court has held that upon proof of the finding of a still, liquor, etc., on premises not owned or controlled by the accused, convictions have been upheld. Gault v. State, 99 Tex.Crim. Rep.; Washburn v. State,98 Tex. Crim. 37; Tarver v. State, 103 Tex.Crim. Rep.; Buchanan v. State, 104 Tex.Crim. Rep.. It appears from the record in this case, omitting reference to what was found in appellant's house, that there was evidence before the jury, plainly competent and relevant, irrespective of the search warrant issue, that appellant and his wife were seen coming from the place where presently were found two stills yet warm. That near by were two barrels of mash and nine gallons of whiskey, and to which stills a well-beaten path led from appellant's house. In the light of what seems to me to be the holdings of this court in many cases, I am unwilling to commit myself to the proposition that this testimony, aside from what was found in appellant's house, did not justify his conviction. No other questions are raised. No other issues are before this court.
Being entirely unable to agree with my brethren in their reversal, I respectfully record my dissent. *Page 669