The appellant was convicted in the District Court of Randall County for the offense of unlawfully manufacturing intoxicating liquor, and his punishment assessed at two years in the penitentiary.
The appellant was charged in the first count with manufacturing intoxicating liquor, and in the second count with the possession for the purpose of sale, intoxicating liquor; the conviction was on the first count.
The record discloses that the officers in searching the premises of the appellant, found buried under the shed, about two gallons of whiskey, and some barrels which contained mash, in a cellar dug in the barn, and several barrels were discovered in the tank and a still which had been thrown therein, and It was the contention of the State that the appellant was connected with the manufacturing of the whiskey found on said premises, and was responsible for same being manufactured. It was the appellant's contention, and he took the stand and so testified, that while he was away delivering cattle for a period of about 10 days, that upon his return, he discovered his hired hand, whom he left in charge of said premises, was in an intoxicated condition, and that whiskey had been manufactured upon his premises; and he thereupon ordered him to get rid of the barrels and equipment, go with him to town at once, and discharged him that day. This is a sufficient statement of the facts as a basis of this opinion.
Appellant complains of the refusal of the court to give an instructed verdict in his favor, as set out in special charge No. 1; and in refusing his special charges Nos. 3, 5 and 6. There was no error in refusing to give peremptory instructions under the facts of this case, and said special charges 3, 5 and 6, refer to the second count in the indictment, which was eliminated from this case by the jury's finding the defendant guilty on the first count.
Bills of exceptions 5, 7, 8, 9, 11 and 13 complain of the action of the court in permitting the state's witnesses to testify concerning their actions and what they found on said premises, because the record discloses that a search warrant was obtained to search said premises, and same was the best evidence, *Page 227 and the State had not laid the proper predicate, showing the loss of same, and it was error to permit secondary evidence relating to the search warrant in question. The court in qualifying bill 5 states that it was shown by evidence that a search warrant authorizing a search of the premises was issued and evidence sufficiently showed he believed its loss, and secondary evidence was admissible. At any rate, we think the authority cited by the attorneys for this court, Campbell v. State, 240 S.W. 937, is in point, to the effect that where there is no question raised as to the sufficiency of the contents of the search warrant, that there was no error in admitting the testimony of the sheriff to the effect that he procured a search warrant and searched appellant's premises, against an objection that the search warrant itself was the best evidence.
Special charges Nos. 2 and 4, we think were fully covered, under the facts of this case, in the court's general charge, and there was no error in refusing to submit same to the jury.
Bill 6 complains of the action of the court in permitting the officer to testify that the defendant told him he was renting the place in question, because it is contended that he was under arrest at said time. The bill as presented shows no error.
Bill 3 complains of the action of the district attorney in his closing argument to the jury. This bill as presented shows no error in the action of the court in his ruling thereon.
After a careful examination of the entire record, we fail to find any reversible error, and are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.