Conviction is for burglary, the punishment being two years in the penitentiary.
M. T. McCoy owned and operated a general mercantile establishment and on the night of February 3, 1926, the house was burglarized and a quantity of goods taken therefrom. A few days later officers obtained a search warrant and searched a house occupied by appellant and one Tucker. As a result of the search practically all the stolen goods were recovered and identified by the owner through cost marks on them. Tucker testified that he and appellant burglarized the store and stole the merchandise.
Complaint is made in bill of exception No. 1 because the officers brought into the court room the merchandise alleged to have been stolen from McCoy's store and placed them in view of the jury, the objection being that no proper predicate had been laid authorizing the production of the goods before the jury. The bill fails to state what witness was then being examined, but upon objection being made the District Attorney said, "I am going to identify it by this witness." We infer he had reference to the party then on the witness stand. The learned trial judge told appellant's counsel if said property was not identified he would instruct the jury not to consider it for any purpose. The bill stops here. There is no recital that the witness failed to identify it. The bill shows no error.
The matter complained of in bills 2 and 3 is because the state was permitted to prove by Tucker, the accomplice, that certain articles of merchandise exhibited to him, were, to the best of his knowledge, goods taken by him and appellant from the burglarized store. There was no error in this. The goods were later positively identified by McCoy.
Complaint appears in bill of exception No. 4 because the sheriff was permitted to testify that he searched the house occupied by appellant and Tucker, after obtaining a search warrant, and found certain goods which he identified, the objection being that it had not been shown that the search was upon a warrant properly obtained. Bills 5, 6, 7 and 9 complain that error was committed by the court in permitting witnesses to testify as to the contents of the affidavit and warrant, the objection being that they, themselves, were the best evidence. The bills are qualified by the court showing that the justice of the peace who took the affidavit had testified that he had searched his office for it without avail, and the sheriff had testified that the warrant *Page 524 had been lost out of his pocket. It being shown that both instruments were lost it was permissible to prove their contents.
J. S. French testified that appellant lived at the house which was searched and where the stolen goods were found; he said he did not know of his own personal knowledge that appellant lived there, but based his statement in that regard on what others told him. Objection was interposed because the witness was stating only a conclusion based upon hearsay. This evidence ought not to have been admitted, but its erroneous reception does not demand a reversal. The court's qualification shows that the witness did testify that he had seen both appellant and Tucker at the particular premises. That appellant did live there seems to have been established beyond question by other testimony. It was not a contested issue.
The judgment is affirmed.
Affirmed.