Kimbrough v. State

LATTIMORE, Judge.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

A quantity of whisky was found near appellant’s house, and there was a path leading from said house to the place where the liquor was buried. While the officers were on the premises, the wife of the appellant went into the house. The officers presently observed liquid running on the ground at the house and they secured about a half pint of it, and it was also found to be whisky. They did not see who was pouring it out, but said if the wife of appellant did not pour it out they did not know who else could have done so. No one else was observed in the house but appellant’s wife. The officers had a search warrant.

There are six bills of exception. The first complains of the refusal of the court to quash the indictment. No facts appear in the record supporting appellant’s attack upon the manner and method of the return, of the indictment. The averment that nine members of the grand jury did not concur in the return of the indictment, does not support itself. There must be an affirmative showing in support of such proposition, before this court can uphold it.

The second complaint is of the insufficiency of the testimony. We have no doubt of there being enough testimony in the record to justify the finding of the jury. The third bill of exception complains of the overruling of the motion for new trial in which complaint was made of matters of procedure already complained of. The court did not err in overruling the motion.

*193It is set up in another bill of exception that a juror sat in the case who was neither a householder in the county nor a freeholder in the state. Authorities are collated in section 548, Branch’s Annotated P. C., holding that where one qualifies on his voir dire as a householder or a freeholder and it is not discovered that this is a mistake until after verdict, same will not be ground for a new trial in the absence of a showing of probable injury. Leeper et al. v. State, 29 Texas App., 72; Lane v. State, 29 Texas App., 319; Mays v. State, 36 Texas Crim. Rep., 437. The record in this case is wholly devoid of any showing of injury. The juror in question voted consistently throughout in the deliberations of the jury that appellant was guilty, but seems to have made no effort to influence the remainder of the jury to accept his view. The state claims the testimony heard on the hearing of the motion for new trial shows affirmatively that this juror was a freeholder. Such testimony did show that the father of the juror had set aside to him a certain part of the father’s land, which was and had been cultivated by the juror, and whose proceeds were his, and the tract of land was referred to in the family transactions as his, but no actual deed had been made thereto. We do not think it necessary to go into the authorities, or to write at length on this question. A claim of ownership, accompanied by possession, might be sufficient under some circumstances to enable the possessor to hold the property; but we do not think it worth while to go into this inasmuch as no injury was shown from the presence of this juror on the jury.

We think the witnesses who testified to the fact that the liquid found was whisky, were qualified to so testify and that complaint of this matter is unavailing. Appellant’s motion to continue was properly overruled.

Finding no error in the record, the judgment will be affirmed.

Affirmed.