Hogland v. State

LATTIMORE, Judge. Conviction for possessing equipment, etc. for manufacturing intoxicating liquor; punishment, one year in the penitentiary. Two officers testified for the state and fully made out the case. Appellant introduced no testimony. The record exhibits four bills of exception. The first complains of the reception of the officers’ testimony as to what was found on appellant’s premises upon a search, — the ground of objection being that the affidavit for search warrant was made on information and belief. We further observe that the officers testified when they met appellant, before they got to his place, they told him they had a search warrant to search said place, and he said to them, “Go ahead and search, you don’t need a warrant.” This would be sufficient authority to search without warrant, or at least to waive irregularities, if any, in the papers and to justify the subsequent search. McPhail v. State, 114 Texas Crim. Rep., 635; Gonzales v. State, 113 Texas Crim. Rep., 122; Hall v. State, 105 Texas Crim. Rep., 365; Grimm v. State, 116 Texas Crim. Rep., 332; Ferguson v. State, 116 Texas Crim. Rep., 308; Williams v. State, 42 S. W. (2d) 1017. Bill of exception No. 2 was to the refusal of a new trial sought because the jury discussed the failure of appellant to testify, and also that they discussed testimony not offered upon the trial. The testimony of the three jurors heard when the motion was presented, is made part of this bill and seems to negative the idea that other testimony was discussed beside that properly before the jury. Only one of the jurors testified to a reference by any juryman to the failure of the accused to testify, and that, as we take it, was a casual reference, and the matter was not discussed. He said in reference thereto that something was said about their not having put appellant on the stand to testify to his reputation. The juror testifying said he [346] himself spoke up at this juncture and said to the jury, “We were instructed not to pay any attention to that.” Further he said, — nothing was said about appellant taking the stand. We see no reversible error in this regard. Bill of exception No. 3 sets out objections to several different parts of the state’s testimony. We think the witness was qualified to testify that the equipment, mash and other material found by him in the building referred to could be used for the purpose of making whisky. Also that the mash found could be used for making beer or liquor. Bill of exception No. 4 complains that the officer was allowed to answer that the equipment, mash, and material were for the manufacture of intoxicating liquor. Several exceptions were taken to the court’s charge, one of them being to the charge on suspended sentence, the ground of objection being that it was a limitation on the right of the defendant in submitting to the jury the issue as to the suspended sentence, and further erroneous in assuming that the jury would convict defendant, and also that it submitted to the jury the general reputation of the defendant when there was no evidence in regard to such reputation. This court has held in many cases that the filing of an application for suspended sentence puts in issue the general reputation of the accused. The paragraph of the court’s charge to which the above exception was addressed told the jury that if they found the appellant guilty, and that he had never before been convicted of a felony in this or any other state, they might in their discretion recommend a suspension of sentence, and that in passing upon his plea for such suspended sentence they might take into consideration the general reputation of appellant. While no one had testified specifically to the reputation of appellant, one of the state witnesses had been asked and affirmed that he had known appellant for about twelve years, and as far as he knew he had never been convicted of a felony in this or any other state. We do not see how the complaint of the charge of the court could be held reversible error. Believing the accused to have had a fair trial, and finding nothing calling for a reversal, the judgment will be affirmed. Affirmed.