Bailey v. State

248 S.W.2d 144, 157 Tex. Crim. 315, 1952 Tex. Crim. App. LEXIS 1784

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 1952
• Docket: No. 25720
• Status: Published

Opinions

DAVIDSON, Judge.

The unlawful possession of whisky for the purpose of sale is the offense; the punishment, a fine of $1,000.

Agents of the Texas Liquor Control Board, by authority of a search warrant, searched the private residence of appellant and found therein a large quantity of whisky, beer, and other intoxicating liquors.

The sole question presented relates to the sufficiency of the search warrant and the affidavit in support thereof.

It becomes of first importance to determine whether the question is before us.

Appellant filed a motion to suppress the evidence obtained as a result of the search. This motion set out the affidavit and the search warrant, and alleged other facts which appellant relied upon to show the description of the premises was such as that the premises searched could not have been located by such description. The motion does not appear to have been acted upon by the trial court.

It has been the repeated holding of this court that it is necessary to object to the introduction of testimony claimed to have been obtained as a result of an unlawful search, and that a motion to suppress such evidence is insufficient for that purpose. Harkey v. State, 142 Tex. Cr. R. 32, 150 S. W. 2d 808; Cothran v. State, 143 Tex. Cr. R. 570, 159 S. W. 2d 876; Anderson v. State, 146 Tex. Cr. R. 222, 172 S. W. 2d 310.

Appellant presents no independent bill of exception complaining of the introduction of the testimony, but relies upon his objection to the testimony as shown in the question-and-answer statement of facts.

The state challenges consideration of such exception and, in this connection, calls attention to the fact that nowhere in the statement of facts, adduced either upon the merits of the case or upon the hearing in the absence of the jury touching the introduction of the evidence, are the affidavit and the search warrant shown.

Other than in the motion of appellant to suppress evidence, the record does not reflect the affidavit and the search warrant upon which the search was based. The affidavit and the search warrant set out in the motion to suppress, not having been authenticated or certified by the trial court, constituted nothing more than a pleading.

In the absence of an authenticated affidavit and search warrant, appellant’s objection to the testimony claimed to have been unlawfully obtained as a result of an illegal search cannot be appraised.

The judgment is affirmed.

Opinion approved by the court.