Frey v. State

Appellant asserts that the rehearing should be granted and a reversal ordered for the reason that the result of the search of the appellant's premises was rendered inadmissible by Art. 727a, C. C. P., 1925, in that the search warrant was not based upon proper affidavit. The point made was disposed of in the original hearing. The conclusion was there reached that granting the impropriety of receiving the testimony mentioned, a reversal of the judgment was not justified for the reason that the appellant voluntarily testified to the same incriminating facts as those introduced by the state. In the original opinion the case of Gonzales v. State, 299 S.W. 901, was cited. It is a familiar rule often applied in this state that testimony improperly received will not ordinarily work a reversal where the same facts are in evidence from another source without objection. This has special application where the error in introducing testimony is cured by the testimony of the accused. See Bonilla v. State, 2 S.W.2d 248; also collation of cases in Vernon's Ann. Tex.Crim. Stats., 1916, Vol. 2, p. 904, notes 27 and 28.

Leave to file a second motion for rehearing is refused.

Motion refused.