Appellant has filed a very earnest motion asking this court to grant a rehearing and reverse his case.
In the state of the record and under the evidence which we find in the statement of facts appellant's proper complaint might have been to object to the introduction of any evidence recovered as a fruit of the search by the officers. The basis of this would have been that the evidence showed a different place searched to that designated in the search warrant. Had this objection been made the state could then have reconciled the difference of opinion of the two witnesses as to the place, or it might have introduced additional testimony if it so desired. If a conflict existed it might have become the duty of the court to submit an issue of fact as to the street and number of the premises searched as a basis for the admission of this evidence. In this event the instruction should *Page 315 have been to acquit if the search was at a place other than that described in the search warrant.
Such question was not raised and it was not incumbent upon the court to give such charge. In the light of this we discuss the bills of exception as follows.
Bill of Exception No. 1 does complain of the admission of the evidence as to the fruit of the search but it bases this complaint not on the claim of a discrepancy between the search warrant and the evidence, but upon the validity of the search warrant, contending that because the search warrant was not issued on the basis of an affidavit filed in the office of the justice of the peace that it was invalid. This objection was properly discussed in the original opinion.
We quote from Bill of Exception No. 1 as follows: 'The sole question presented by this bill is the alleged error of the court in admitting in evidence, over the defendant's objections, testimony of the two state's witnesses that as a result of the search made by them they found thirteen pints of whiskey alleged to have been possessed by the defendant for the purpose of sale. It involves the validity of the searchwarrant prepared by officers of the Liquor Control Board,carried by them to the home of the Justice of the Peace, whereall three copies of the search warrant were signed by theJustice of the Peace, then returned to the officers whoexecuted the search, who thereafter left one copy with the defendant, filed one with the County Clerk, and retained the third copy. At the time of the search, no affidavit forsearch warrant was on file with the Justice and the case hadnot then been docketed.' (Emphasis ours.)
The court properly overruled the objection to the evidence made on the above basis, as stated by appellant in his Bill of Exception. Having reached this conclusion it was not incumbent upon the court to give an instruction to the jury as requested by appellant to determine as a matter of fact which place was searched. This was immaterial because no objection was lodged against the evidence on that ground.
From Bill of Exception No. 2 we discover the purpose of the bill from the following language taken from the bill itself: 'This bill relates to the alleged error of the trial court in refusing to give to the jury defendant's requested charge No. 4.'
The following from Bill of Exception No. 3 properly interprets the purpose of said bill. 'This bill presents the sole question of the alleged error of the trial court in refusing to give to the jury defendant's requested charge No. 1.'
In like manner, the purpose of Bill of Exception No. 4 is disclosed by the following language copied from said bill: 'The question presented by this bill is the alleged error in Paragraph 2 of the Court's charge.'
It is not always incumbent upon this court to discuss every question raised by the bills of exception or the arguments in the briefs of all cases. Frequently that would result in encumbering the reports with useless and even improper matter. The original opinion discussed the sole question which is the basis of all complaints found in the appeal. It did so without discussing the authorities relied upon by appellant because we did not then and do not now feel that they were pertinent to the issue. We repeat that the objection lodged against the introduction of the evidence in Bill of Exception No. 1 was based upon the theory that the search warrant was invalid. This cannot be sustained. If the objection had been on the ground that there was a variance between the evidence and the direction in the search warrant for the premises to be searched a different question would have been presented to the trial court and it would have become his duty to have that question determined by the jury.
We remain of the opinion that the judgment of the trial court should be affirmed and appellant's motion for rehearing is overruled. *Page 316