Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.
There is complaint of misconduct of the jury. The court heard evidence and overruled the motion for new trial. Seven jurors testified. What occurred in the jury room must be arrived at by a study of what was said by these jurors upon the hearing. All of them agree that the matter of the failure of defendant to testify, — which is the misconduct relied upon, — -was referred to but once, and not then discussed. We think the trial court, and this court, justified in concluding that these men, who apparently had no other interest in this case than to tell the truth, were trying as best they could to reproduce the same statement made by some person not identified, in the jury room. Five jurors said they heard some one say that appellant had not testified, — that this was only said one time, and that there was no discussion of it. One juror testified that if such statement was made he did not hear it. The remaining juror, called by appellant, testified that there was but one mention of this matter; that some one said the defendant did not deny it, or that he did not put any testimony on, and that this was at once stopped by the foreman who read from the charge that the failure of the accused to testify could not be discussed, and that there was no further reference to it. Merely stating that the defendant did not testify, — a fact of which each juror was necessarily cognizant, — would not ipso facto be deemed a violation of the statute, or a matter supporting any deduction that such fact was being considered to the detriment of the accused. One man who had *342served on the jury, approached after the verdict, might have one recollection of what was said in the jury room, and another or others have a different recollection of the same statement. Hearing these jurors state their version of what was said in the necessary effort to properly administer justice, makes it the duty of the trial court to arrive at some conclusion as to what was said, and to determine the effect of it, and this court will decline to reverse his ruling unless satisfied that his discretion has been abused. We perceive no abuse of such discretion in this case.
There is complaint of refusal to continue. The application was at least a third or fourth application. One of the absent witnesses appeared and testified. The purpose of her testimony and that of Sanders, another of said witnesses, was to impeach state witness Wilson. Ordinarily a case will not be continued merely to secure impeaching testimony. Franklin v. State, 34 Texas Crim. Rep., 203, 39 S. W., 1088. See cases cited in section 324, Branch’s Ann. P. C. The remaining absent witness was appellant’s mother, and it was stated that she would testify that appellant bought th; whisky found in his possession for use by his father as medicine. Her absence was attributed to illness. The court heard evidence when the motion for new trial was presented, and seems fully justified in concluding that said witness was able to appear and testify. The court qualifies the bill complaining of the refusal of a continuance by stating further that appellant at one time made an application for continuance because of the absence of his father by whom he set up that he could prove the same things now stated as expected from his mother, and swore in his former application that there was no other witness except his father by whom he could prove such facts.
Bills 2, 3, 6 to 12, 14 to 21 present objections to matters dependent on the validity of the affidavit and search warrant had by the 'officers at the time of their raid. The affidavit was sufficient. Same was not made on information and belief. The date laid was October, 1928, and it appears that the affidavit was filed October 3, 1928, and the search warrant issued thereon on the same day by the same official who took the affidavit. The search warrant was dated October 3, 1928, and referred to the affidavit which “Has been made before me”. The place to be searched was sufficiently described. The testimony set out in each of said bills is pertinent and admissible. It appears without contradiction that appellant’s wife was seen by the officers when they entered the place, with a half gallon jar of whisky which she was apparently about to break. The officers took same from her. They said they heard a crash inside of another room, and upon entering they saw broken glass on the floor which looked like a broken half gallon jar; corn whisky was on the floor. One witness swore that as they drove up appellant ran into the house and then came out the back door with a case in his hands. He raised this and the officer told him not to throw it. He raised it again and the officer *343pointed his pistol at appellant, who then came down and handed the case to the officer. There were seventeen pints of whisky in the case. The officers found a quantity of home-brew.
It was permissible to show that a few nights before this raid appellant sold whisky and home-brew at his house. This as showing the purpose for which he possessed the liquor found by the officers. Complaint of the receipt of this testimony is made in bills 4, 5, and 13.
There are a number of bills of exception complaining of different parts of the charge of the court, each of. which has been examined, and in none of which do we find any error. We are not favored with any brief by appellant.
The judgment will be affirmed.
Affirmed.