Conviction for burglary, punishment three years in the penitentiary.
A store in Santa Anna in Coleman County was burglarized on the night of the 17th of August, 1927. The burglary was discovered about 1 o'clock that night and officers of adjacent counties were communicated with at once and notified to look out for the burglars. Later in the night the Sheriff of McCulloch County arrested appellants in a car a few miles out from Brady. In the car was found a large quantity of the goods taken from the burglarized store, some $1,200 worth of dry goods. Appellants defended on the theory that some other man employed them to carry the goods for him to a point beyond Brady.
Appellants' bills of exception Nos. 1, 2, 3, 4, 8 and 9 relate to various things resulting from the admission of testimony of the sheriff and a deputy sheriff as to what they found in the car driven by appellants on the night in question. We are not in accord with the proposition advanced that the officers did not have the right to search the car in question under the facts appearing before us, but forego a discussion of these facts and the law applicable in view of the fact that appellant Gonzales took the stand in his own behalf and without objection fully admitted their possession of the car and of the goods and the facts stated by the officers to be the result of their search of said car. The principle of law applicable is fully discussed in Gonzales v. State, 295 S.W. 901; Frey v. State, and Bonilla v. State, opinions handed down on January 25, 1928, and McLaughlin v. State, No. 11286, opinion handed down February 15, 1928, which latter cases have not yet been reported. The last case mentioned cites many authorities, beginning with Wagner v. State, 53 Tex.Crim. Rep.. We regard it as well settled *Page 400 that a complaint is without merit which attacks the admission of testimony, in a case in which the record shows that the same testimony was otherwise introduced by the accused himself, or some other witness without objection.
Appellants' bill of exceptions No. 5 complains of the refusal of an instructed verdict, and is without merit. Each of the complaints set up in the other bills of exception has been examined and are of matters deemed by us of no materiality under the facts in this case. Manifestly the court would be guilty of no error in refusing to charge on probable cause in a case in which the question of the validity of the search becomes of no moment, as in this case. We regard the court's charge as fully presenting the affirmative defense, and that no error appears in the refusal of the special charge, presenting same in a little different way.
No error appearing, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.