Riviera v. State

LATTIMORE, Judge. Conviction for possessing intoxicating liquor for purposes of sale; punishment, three years in the penitentiary. The indictment in this case contained two counts, the second of which was submitted in the charge of the court. The state relied chiefly upon the testimony of Mrs. Cano, who swore that appellant brought a quantity of whisky to the home of witness. Same was brought up in a barrel. She affirmed that her husband had nothing to do with the whisky. The state offered the woman’s husband as a witness, but he refused to testify, claiming his privilege. The testimony of the woman sufficiently made out a case against appellant. There are other circumstances in the record indicating guilt. Appellant took the stand and denied substantially the testimony of Mrs. Cano. The reconciliation of the testimony is a question for the jury. [314] Bill of exception No. 1 is lengthy, and is qualified by the trial judge. As we understand said bill, it complains of the refusal of the court to submit the case upon the theory of circumstantial evidence. This is the substance of the recitations of the bill. In our opinion the case is not one on circumstantial evidence, and the learned trial judge did not err in this regard. There is complaint of argument of the district attorney. Without •stating same at length, we are of opinion that on the facts testified to by Mrs. Cano the district attorney was justified in making said argument. This bill is also qualified by the trial judge. There is a complaint directed at the validity of the search made of the premises of Cano by the officers. It is sufficient to say that since Cano is not upon trial, and it does not appear that the premises searched by the officers belonged to appellant, he is without right under the authorities to complain of the supposed invalidity of the search. McFarlin v. State, 106 Texas Crim. Rep., 384. The evidence seems to justify the verdict, and the judgment will be affirmed. Affi rmed.