Siragusa v. State

LATTIMORE, Judge. Conviction for possessing intoxicating liquor; punishment, one year in the penitentiary. We find in the record four bills of exception. The first complained of the reception of testimony showing appellant in possession of intoxicating liquor, on the ground that the affidavit upon which the search warrant was' based was insufficient, in that it stated that the premises were occupied and used by *264 “parties unknown to affiants.” It is insisted that the averment should have been that the names of the parties were unknown, if such was the fact, and, if their names were unknown, then, it should have been stated that a description of such persons could not be given. An affidavit similar in this regard to the one under discussion was held sufficient in Naulls v. State, 115 Texas Crim. Rep., 44, 27 S. W. (2d) 180, and this was approved in Denzlinger v. State, 116 Texas Crim. Rep., 158, 28 S. W. (2d) 160. We can not uphold appellant’s contention. Nor do we think the affidavit defective by reason of the fact that in same, after the positive statement therein that the premises were being used for manufacturing and selling intoxicating liquors, it was further stated that the affiants’ knowledge was based on the fact that reputable people had made to them complaints and reports that intoxicating liquors were kept and sold on said premises. A positive averment of either the manufacture or the sale of intoxicating liquors upon homestead premises would be sufficient to justify the issuance of search warrant. We see no reason for discussing the. proposition that the warrant was defective because it went further than to direct search for liquors being sold. We see no reasonable ground for objection to the testimony of the searching officer that before he went to the place he had procured a search warrant. The search warrant was not before the jury, nor was the officer asked anything as to the contents thereof. Bill of exception No. 4 shows that the state asked appellant’s wife on cross-examination if she did not know that appellant was convicted in the federal court for selling whisky and served a term in jail. Upon objection by appellant, the question was changed, and witness was asked if she did not know appellant was convicted and served a term in jail for selling whisky. If any objection was made to her answer to this question, it is not set out. The bill of exception shows that, when asked this last question, she said, “When was that?” and was informed that it was in 1928, whereupon she replied that she did not know appellant in 1928. We see no reversible error in this, but note that, when the witnes was turned back to appellant’s counsel for re-direct examination, she testified, in response to his question, that appellant was convicted of some liquor charge and got a seventy-five day sentence. We also note that appellant’s wife testified that the liquor was found by the officers on the premises. *265 Finding no error in the record, the judgment will be affirmed. Affirmed.