The State's testimony is as follows: The dwelling-house in which Willie Wright, a negro, his wife, Dora Wright, and his eleven-year old daughter resided was searched by Sheriff Patrick and in the house he found a quart bottle of whisky which was deposited in a sack. According to the testimony, he had information that Ed Burnett, the appellant, had placed the whisky in the house, and that upon that information he made the affidavit and obtained a search warrant. It was shown by the witness Dora Wright that the appellant brought a bottle of whisky to her house a short time before the search took place. Her daughter gave testimony in substance to the same effect. It seems from other testimony that before making the search of the house the sheriff, acting under a search warrant, had searched the car of the appellant without finding any whisky therein.
Appellant introduced the witness Robert White, who testified that on the day of the arrest, he was in company with Burnett; that they went together in the appellant's automobile and that Burnett had no whisky, at least the witness saw none. Upon cross-examination, White testified that the automobile in which they were riding was stopped at a point near Willie Wright's residence and remained there for some time; that while stationed there, the appellant left the car and returned in about ten minutes.
In his motion the appellant insists that Bills of Exceptions Nos. 1 and 2 are sufficient to present error. The criticisms of the bills as contained in the original opinion are deemed sound. However, the bills are otherwise deemed without merit.
The ruling of the court of which complaint is made is that in which he sustained the State's objection to the question propounded on cross-examination, asking the sheriff if he did not make an affidavit that Willie Wright had intoxicating liquors in his house for the purpose of sale. Explaining Bill No. 1 the court states that Patrick testified that he got a warrant to search Willie Wright's house because he was informed that Ed Burnett had placed whiskey therein. The court refers to the facts, an examination of which shows that the sheriff testified that he made the affidavit upon which the search warrant was based.
The complaint of the failure to read the search warrant to the occupants of the house is without merit as the prosecution is not against either of them, but is against the appellant, who neither *Page 190 owned, possessed or occupied the place. See Craft v. State, 295 S.W. Rep. 617.
The appellant's witness, Robert White, having testified on direct examination that he was with the appellant and that he had no whisky and having further testified on cross-examination that the appellant's car had been stopped near the home of Willie Wright and that the appellant left the car, it was not improper for the State, for the purpose of impeachment, to ask the witness if he had not told one Hughes that the appellant had stated that he had carried the whisky over to Dora Wright's house. The witness White gave a negative answer to the question. So far as shown by the bill, the matter was not further pursued.
The motion for rehearing is overruled.
Overruled.