Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary.
Acting under a search warrant officers found four pints of whiskey buried under a small fruit tree eight or ten steps from appellant's house. The written confession of appellant was put in evidence in which he admitted having bought and buried the whiskey.
The regularity and sufficiency of the search warrant and affidavit upon which it issued is not challenged. By bill of exception number one appellant complains at the reception of the evidence as to the *Page 588 result of the search. It is stated in the bill — as ground of objection only — that the officers failed to exhibit the search warrant to appellant or to notify him in any way that the search was by virtue of such instrument. There is no certificate of fact in the bill that the officers failed to do these things. The question thus sought to be raised is not properly before us. (See Branch's Ann. Tex. P. C., Sec. 209.) However, we take notice of Art. 319, C. C. P. upon which the objection was apparently based. Said article reads:
"The officer shall, upon going to the place ordered to be searched, or before seizing any property for which he is ordered to make search, give notice of his purpose to the person who has charge of, or is an inmate of, the place, or who has possession of the property described in the warrant."
An officer ought to give notice of his purpose as directed by said article, both for his own protection and in fairness to the party whose premises are to be searched. A failure to give such notice would frequently throw light upon and determine the legality or otherwise of the conduct of all parties at the time of the search, but this phase of the question is not in the present case. A failure to give the notice provided in the article quoted would not, in our opinion, render the search illegal and therefore would not result in the rejection of the evidence obtained as a result thereof.
Upon the trial appellant denied that the whiskey belonged to him and that he buried it. In other words, he repudiated his confession. He claimed that he was not given proper warning and was coerced into signing the confession by being told that he would not be allowed to make bond until he did sign it. Upon the predicate laid by the state the court committed no error in admitting the confession in evidence. An issue, however, having been made with reference to the circumstances under which it was obtained the court told the jury that the confession could not be used by them unless they believed from the evidence beyond a reasonable doubt that it was freely made by appellant without compulsion or persuasion after he had been warned as the law required. The court complied with precedents in the respect mentioned. Sparks v. State, 34 Tex.Crim. R.,29 S.W. 264. Many other cases are collated under Sec. 75, Branch's Ann. Tex. P. C.
A new trial was sought upon the alleged ground of newly discovered evidence. The motion for new trial was not sworn to. This is necessary when a motion is based upon newly discovered evidence. *Page 589 Walker v. State, 91 Tex.Crim. R., 240 S.W. 538; Vawter v. State, 11 S.W.2d 321. See Branch's Ann. Tex. P. C., Secs. 193-195, for collation of further authorities. The bill bringing forward complaint at the action of the court in overruling the motion for new trial bears a qualification by the trial judge to the effect that the witness whose evidence was claimed to be newly discovered was subpoenaed by appellant, his name called by appellant's attorney, was present during the trial, was placed under the rule with other witnesses, and was not used by appellant. There is no showing that any exception existed to the rule that ordinarily newly discovered evidence can not be claimed from a witness present at the trial. Fisher v. State, 30 Tex.Crim. R., and other cases collated under Sec. 204, Branch's Ann. Tex. P. C.
Bill of exception number three presents no error.
The judgment is affirmed.
Affirmed.