CONCURRING OPINION. According to the witness, Wellborn, a deputy sheriff, he went to the home of the appellant in company with George Hays, the sheriff, and Deputies Sam Gault and Walker Green. The witness said, in substance, that they went to the dwelling house of the appellant and made known to him that they had a search warrant to search his premises; that they went inside of his house through the front door, and just inside behind the door he had four or five jugs tied together with a wire, which jugs had been freshly washed. They were in his dwelling house. The stove room and kitchen were searched, as was the smokehouse, in which were found some jars freshly washed. The officers climbed up into the loft of the kitchen, where they found two sacks of sugar which had on the sacks the *Page 658 words "meal" and a piece of a sack of sugar. The sheriff had a search warrant which had been issued by the County Judge of Rusk County. The sheriff offered to read the warrant, but the appellant told him to go ahead and search.
Gault, another deputy, who was in company with Hays, Wellborn and Green, stated that they made a search of the appellant's premises; that in his house they found a number of jugs and fruit jars freshly washed, and about 250 yards back of the house in a field they found two stills, which were on a little furnace which was still warm; that near the house they found two barrels of mash. Gault also testified that they found some whiskey between the house and a well about 150 yards from the house. Similar testimony was given by Green.
Appellant testified that he owned an interest in and lived on the place, but disclaimed the ownership or knowledge of the whiskey or the stills. According to his testimony, the stills were not on the land enclosed by his premises and did not belong to him. He claimed that the article found in the kitchen loft was flour and not meal; that the jars had been washed by his wife after finishing making some preserves. The trail described by the officers which led towards the place where the stills were found also led to the well and was used by the appellant in working his land. It was shown that some negroes lived in the community, some of them not much farther from the stills than the appellant.
The sheriff testified that he had a warrant to search the place of Laura Jones, but had no search warrant to search the place of the appellant; that after searching Laura Jones' place, he added Sherow's name to the search warrant; that while searching Laura Jones' place, she told him about Sherow and other negroes. The sheriff said:
"I searched Laura Jones' place and found a bear sign; then she told me about Bennie Sherow and the other negroes, and I just added his name in the warrant I already had for her place."
From bill of exceptions No. 1 it appears that the state introduced Wellborn, Gault and Green as witnesses; that all of them testified that they were deputy sheriffs and that in pursuance of their duties as officers they searched the premises of Bennie Sherow on the 28th of February, 1924; that they operated under a search warrant issued by the County Judge of Rusk County; that George Hays, Sheriff of Rusk County, was with them at the time; that the sheriff had a search warrant. The bill further shows that after these witnesses had testified, the sheriff was called to the witness stand and testified that he did not have *Page 659 a search warrant issued by the County Judge of Rusk County to search the premises of Bennie Sherow, but did have a warrant issued by said County Judge to search the premises of Laura Jones; that after finding mash, etc., on her premises and being told by her that there was whiskey on the premises of Bennie Sherow, the sheriff, George Hays, then, of his own accord, inserted the name of the appellant, Bennie Sherow, in the search warrant; that then the officers went upon the premises of the appellant and made a search for whiskey, mash and still. The bill also shows that after the sheriff had testified as last above stated, the appellant, in open court and before the jury was instructed, moved and requested the court to strike out and withdraw the testimony given on the trial by the witnesses Wellborn, Gault and Green for the reason that such testimony was procured by virtue of, and under an illegal search warrant and was not proper and competent on legal testimony before the jury. This motion the court overruled. Appellant reserved a bill of exceptions which was allowed by the court without qualification save that the search was made at a date anterior to September 16, 1925, at a time when the search and seizure law was not effective. The same matter as that stated above was brought before the court in the motion for new trial, all of which appears in a second bill of exceptions which was approved without qualification save with the statement that the search was made prior to the enactment of the search and seizure law by the Thirty-ninth Legislature.
In holding that the search warrant law enacted by the Thirty-ninth Legislature, Chapters 49 and 149, did not operate upon the transaction, the learned trial judge was in error. The trial was had after the law, declaring that evidence obtained through an unlawful search could not be used upon the trial, became effective, and under it evidence obtained through an illegal search was not admissible. A discussion of this matter is permitted for the reason that it is further reviewed in other cases as well as in the original opinion on this appeal.
From what has been said it is obvious that at the time that the appellant's dwelling-house, his smokehouse, and the yard surrounding his house, were searched by the officers who testified and who were named in the bill of exceptions, there had been issued no search warrant authorizing them to search any of the appellant's premises. According to the undisputed testimony coming from the state's witnesses, the sheriff had told the appellant that he had a search warrant, issued by the County Judge of Rusk County, to search the appellant's dwelling. This was *Page 660 not true. The sheriff, without semblance of authority or right, had written, over the signature of the judge who issued the search warrant against another person and property, the name of the appellant. When this was ascertained, the appellant moved the court, in a timely and proper manner, to withdraw from the jury the testimony which had been given by the officers named. It seems from the qualifications of the court that he overruled this motion upon the theory that the search warrant was not necessary. Upon this appeal, the action of the searching officers in perpetrating the fraud is not denied but it was insisted that the bill of exceptions does not make known to this court enough of the facts to warrant it in reviewing the action of the trial court in allowing the state to convict the appellant upon the testimony which was given to the jury by the officers who imposed upon both the court and the appellant and made the fraudulent alterations of a public document.
In Art. 667, C. C. P., 1925, which is brought forward without change, it is declared that the rules prescribed in the civil statutes govern the bills of exceptions in criminal statutes. The rules in the civil statutes, prescribed in Article 2237, are to the effect that one dissatisfied with any ruling of the trial court may take an exception thereto, which shall be reduced to writing, and when approved by the trial judge, shall become a part of the record to guide the reviewing court in passing upon the correctness of the ruling. Subdivisions Nos. 1, 2 and 4 are here reproduced:
"1. No particular form of words shall be required in a bill of exception; but the objection to the ruling or action of the court shall be stated with such circumstances, or so much of the evidence as may be necessary to explain, and no more, and the whole as briefly as possible."
"2. Where the statement of facts contains all the evidence requisite to explain the bill of exception evidence need not be set out in the bill; but it shall be sufficient to refer to the same as it appears in the statement of facts."
"4. Where the ruling or other action of the court appears otherwise of record, no bill shall be necessary to reserve an exception thereto."
Practically all matters calling for review are presented in this court by bills of exceptions, and the announcement of the court touching their sufficiency to present supposed errors in a manner to demand consideration is a matter of daily occurrence. A general statement touching the form, requisites and sufficiency of bills of exceptions are set out in Vernon's Tex.Crim. Proc., 1925, *Page 661 p. 364. The notes under Art. 667, P. C., 1925, embrace many expressions of the court touching the requisites of a bill, as well as their application to the particular bill of exceptions under consideration. It is the effort of the court in this and in all cases to apply the rules authorized under the statutes mentioned (Art. 2237) to the facts in each particular instance. The court has ever been insistent in demanding that a bill of exceptions should not be lacking in the essential requisites which go to show the nature of the ruling of the trial court of which complaint is made; that the ruling was made over appropriate objection; that its effect was prejudicial to the rights of the accused on trial. On appeal, the presumption prevails that the ruling of the court was right, or that it was harmless, unless the contrary appear from the bill of exceptions. In other words, one claiming that his rights are prejudiced by an erroneous ruling must present a bill of exceptions from which this court will be able to ascertain that the complaint is just. In each case, the substance, and not the shadow, is the thing sought, and the administration of justice according to law is the object. "Rules of procedure are made to facilitate, not to obstruct the administration of justice, and it has been the practice of the courts of this state, in deciding questions as to the sufficiency of bills of exceptions, to bear in mind and apply this principle." Williams v. State, 89 Tex.Crim. Rep.; Railway v. Pemberton, 106 Tex. Rep. 468; Farrar v. State, 29 Tex.Crim. App. 253; Stanton v. State, 42 Tex.Crim. Rep.; Robinson v. State, 70 Tex. Crim. 81; Plummer v. State, 86 Tex.Crim. Rep.. In Plummer's case, supra, in which the original opinion was written by our brother, Lattimore, is a notable example.
In a criminal case, the reading by this court of the statement of facts, if there be one, is an essential predicate to an affirmance of the judgment. This court has always been called upon, before affirming a case, to determine the sufficiency of the evidence. In the present case, however, aside from the statement of facts, we learn from the bills of exceptions that the sheriff and his three deputies, having in their possession what purported to be a warrant to search the appellant's premises, but which was not, and by telling him that they had a warrant to make the search, did search the premises and did testify to the result of the search; and that the court, after learning of the deception, refused to exclude the testimony. The bill of exceptions would have been fuller if it had embraced a statement of all the facts to which the witnesses named therein had given testimony. However, tested by the most restrictive rule, it does appear *Page 662 that the sheriff and his deputies searched the premises of the appellant; that they did so in violation of a statute which forbids a search without a warrant upon the pretense that they had a warrant. To the writer it seems obvious that the court should have granted the appellant's request to withdraw the testimony which the bill shows was given by the witnesses mentioned.
In his motion for new trial, appellant set up all the facts showing that the illegal search had been made and verified them by a separate affidavit. That is, he set up the matters set out in the bill of exceptions showing that the officers searched his premises and illegally gave testimony obtained thereby against him. In considering the motion for new trial the trial judge had before him all the facts adduced upon the trial. It was his privilege, as well as his duty, to consider all the evidence heard upon the trial in order to measure the effect of his erroneous ruling and the illegal conduct of the sheriff and his deputies. At the time he passed upon the motion for new trial, he knew that the deputies mentioned had testified to evidence which they had obtained in searching the appellant's private dwelling; that they had claimed to have found there articles, which they described, usable in the manufacture of whiskey; that they had found jugs and jars which were in a condition to arouse suspicion against the appellant touching the manufacture of intoxicating liquor; that they found whiskey about 150 yards from his dwelling-house, but whether on his land or not is not made clear. It was also known to the trial judge that the appellant had testified that the stills which the officers claimed to have found some 250 or 300 yards from the appellant's premises were not on his premises and that concerning them he knew nothing; that numerous other negroes lived nearby. This was not controverted, but the proximity of the stills was a damaging circumstance against the appellant, and the evidence found by the officers in searching his dwelling was doubtless used by the jury in contradiction of the claim of the appellant that the still did not belong to him. These things the learned trial judge was bound to know because he had heard the testimony. He was also bound to know that he had been misled, both as to the law and the fact, when he received the testimony.
In the opinion of the writer, from the whole record, the court was not warranted in refusing to grant the motion for new trial. I, therefore, concur in the opinion of Judge Hawkins that the due administration of justice demands a reversal of the judgment of conviction rendered under the circumstances. *Page 663