Boyer v. State

CHRISTIAN, Judge.

The offense is possession of equipment for manufacturing whisky; the punishment, confinement in the penitentiary for one year.

Acting under a search warrant, officers went to the Boyer Hotel and searched room 214. They found therein a still, a pot, two barrels of mash, and other equipment. In the room there was a 5-gallon jar full of some kind of liquor that smelled like whisky. In a linen closet down the hall outside of the room they found a burner, a stand, two 5-gallon kegs, some pint bottles and half-gallon jars. The linen closet was unlocked. Appellant was not near the room at the time the search was made, but was in the hotel. The officers testified that they could smell the mash as soon as they entered the hotel. The proof *78on the part of the State was to the effect that appellant operated the hotel, consisting of about 25 rooms, and that he in person cleaned up the rooms every day. It was further in evidence that appellant did not occupy room 214. In said room there was a dresser, bedstead and chair. The bed had no cover on it and showed no evidence of having been used for sleeping. Witnesses for appellant testified that room 214 had been occupied by a man by the name of Stone; that he was last seen in the room a week before the raid. They testified further that they did not know the still and mash were in the hotel and had not seen appellant manufacturing whisky. Appellant did not testify in his own behalf. We think the evidence sufficient to support the conviction.

Appellant objected to the testimony of the officers touching the result of the search on the ground that he was at no time presented with a search warrant, and that the officers failed to notify him that they possessed such warrant, or of their intention to search before they entered the house. The point appellant urges was decided adversely to his contention in McGee v. State, 51 S. W. (2d) 714; Elms v. State, 26 S. W. (2d) 211, and Justice v. State, 18 S. W. (2d) 657.

After the verdict had been returned appellant’s counsel secured from one of the jurors an affidavit to the effect that he lived near the Boyer Hotel and on one occasion about a year before the raid passed the hotel and could smell the fumes of liquor, and further, that he had heard that appellant had the reputation of manufacturing and selling liquor. There is nothing in the testimony to show that appellant or his counsel questioned the juror on his voir dire examination concerning any information he had about the case. It does not appear that the juror made any statements to the jury concerning the things he had heard about appellant. The record failing to ,-show that diligence was used by appellant or his counsel upon the voir dire examination of the juror to determine what he knew about the case, we would not be warranted in ordering a reversal. See Wells v. State, 10 S. W. (2d) 991.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.