Bowers v. State

Appellant was charged with a violation of the liquor laws in Delta County, same being a dry area, in that he possessed for the purpose of sale intoxicating liquor, and upon a conviction therefor his punishment was assessed at a fine of $100.00, hence this appeal.

In his brief appellant offers two propositions upon which complaint is based: First, the insufficiency of the evidence, and, second, the admission of testimony relative to what the peace officers found upon a search of appellant's premises under what was termed by appellant as a defective search warrant.

Both propositions are based upon the same complaint, and that is the insufficiency of the search warrant, and both contentions can be treated together. As suggested by the State's Attorney, both complaints can be disposed of on the ground that if there was error evidenced by the introduction of the testimony relative to the liquor found in appellant's place of business by the searching officers, the appellant himself introduced the witness Caperton who testified to the same facts as were testified to by the searching officers, and who placed the same amount of liquor in this place as the officers themselves had testified to, but claimed the same as his own. We have heretofore held in Countee v. State, 44 S.W.2d 994, that "Illegally obtained evidence does not call for a reversal where other testimony to the same effect goes into the case without objection," and cases there cited. Also see Johnson v. State, 42 S.W.2d 421.

It is not necessary to write on the legality of the search *Page 389 of appellant's premises on account of the fact that he introduced the same proof relative to the liquor contained on such premises, thereby obviating the necessity of a construction of such search warrant.

The testimony shows that there was more than a quart of liquor found on appellant's premises, and the court properly instructed the jury relative to whether or not this liquor was the property of and in the possession of appellant. Their verdict fixed such ownership and possession, and we do not feel inclined to disturb the same.

Many bills of exception are found in the record, but are not mentioned in appellant's brief. Upon an examination thereof we are inclined to the view that none of them evidence error of any substantial nature.

The judgment is affirmed.

ON APPELLANT'S MOTION FOR REHEARING.