Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary.
Acting under a search warrant officers went to appellant's home and found in a small rock house (called the "dairy house") near the residence five gallons of peach brandy, two gallons of cherry wine, sixty bottles of "home brew," caps and a capping machine. A chemist who made an analysis of samples of each kind of the liquor found testified that the peach brandy contained 9.6 per cent of alcohol by volume, the cherry wine 8.8 per cent, and the home brew 3.4 per cent.
It was appellant's contention that under the evidence the "dairy house" was a part of the private residence, and that evidence of what was found by the officers was inadmissible by reason of a claimed defective affidavit upon which the search warrant was predicated. Bills of exception preserving the point are brought forward. We find it unnecessary to discuss the matter on account of the evidence which went into the case from appellant's wife. She admitted the presence of the liquor testified to by the officers, saying it was made by her and appellant. She denied that any of it was kept for the purpose of sale, and said the "home brew" was for her own personal use. The jury was pertinently told that appellant could not be convicted if the liquor in question was intended for medicinal purposes or for home consumption. The same evidence which appellant sought to exclude as coming from the officers having gone into the record from appellant's own witness, he is in no position to complain. We cite only a few cases, but they will be found to collate many others. See McLaughlin v. State,109 Tex. Crim. 307, 4 S.W.2d 54; Machado v. State,112 Tex. Crim. 538, 17 S.W.2d 1060; Stone v. State,113 Tex. Crim. 371, 22 S.W.2d 140; Reusch v. State,119 Tex. Crim. 112, 45 S.W.2d 209.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.