The evidence of Chico Lujan is uncontradicted to the point that appellant, on the night of April 1, 1925, sold to Lujan a bottle of intoxicating liquor. It appears that on the following day, April 2nd, a search of the appellant's premises was made and upon the premises which the officers claimed to have been under the control of the appellant there was found some whiskey. In the indictment appellant was charged in separate counts with the sale of intoxicating liquor and with the possession of intoxicating liquor for the purpose of sale. The officers who made the search claimed in their testimony that it was made with the consent of the appellant. The fact that the sale was made on the previous night is not controverted. Appellant offered no testimony; the State's witnesses were not impeached. The lowest penalty allowed by law was assessed against the appellant. It is difficult under the record to understand how any verdict more favorable to the appellant could have resulted in view of the testimony, which showed without controversy that he had unlawfully sold intoxicating liquor on the night of April 1st. The testimony as to the search of his premises on the subsequent day and the finding of intoxicating liquor there was received by the court in support of the count in the indictment charging the possession of intoxicating liquor for the purpose of sale. That count, however, was eliminated by the verdict of the jury, which found the appellant guilty of the unlawful sale. If there was any conflict in the evidence touching the sale, or the verdict was beyond the minimum, we would feel obliged to pass upon the law with reference to the search of the premises as applied to the facts. However, being unable to perceive any manner in which that testimony could have been injurious to the appellant under the present record, or could have contributed to the verdict which was assessed against him, we are constrained to adhere to our ruling upon the original hearing, without discussing the question raised with reference to the admissibility of the testimony of the officers touching the search of the premises and the result thereof. Any remarks which might be made on that subject would be unauthorized, as not necessary to the determination of the merits of the appeal.
The motion is overruled.
Overruled. *Page 611