Benoit v. State

Appellant insists that in receiving the evidence of the search of the premises and the discovery of two pints of whisky there was a transgression of the rules of evidence, excluding proof of other offenses. The State's witness Keeney testified that he purchased a pint of whisky from the appellant. In his own testimony the appellant admitted that he delivered a pint of whisky to Keeney but claimed that it was a gift and not for sale; that he had no whisky for sale. Appellant testified that in addition to the whisky which he delivered to Keeney he had two more pints of whisky on hand. This testimony, coming from the appellant, was substantially the same as that against which the bill of exception is directed and apparently comes under the rule that does not permit a reversal because of the reception of testimony over objection when the same testimony is in evidence without objection. See Bonilla v. State,108 Tex. Crim. 603, 2 S.W.2d 248; McLaughlin v. State, 109 Tex.Crim. Rep., 4 S.W.2d 54; Frey v. State,109 Tex. Crim. 168, 3 S.W.2d 459; Sifuentes et al v. State, 109 Tex.Crim. Rep., 5 S.W.2d 144; Sherow v. State, 110 Tex.Crim. Rep., 9 S.W.2d 353; Kitchens v. State, 111 Tex.Crim. Rep., 10 S.W.2d 999. However, in the present instance the appellant testified in his own behalf that he made no sale but made a gift of a pint of whisky to the prosecuting witness.

The indictment contained one count charging the sale of whisky and one charging the possession of intoxicating liquor for the purpose of sale. Apparently the testimony to the effect that upon the search there were found in the appellant's possession two pints of whisky besides the pint delivered to the prosecuting witness was, at the time the evidence was received, admissible as bearing upon the count charging the possession for the purpose of sale. That count was not submitted to the jury. The complaint, however, is of the reception of evidence of the *Page 138 result of the search and not of the failure of the court to withdraw it.

The motion for rehearing is overruled.

Overruled