Garza v. State

48 S.W.2d 625, 120 Tex. Crim. 147, 1930 Tex. Crim. App. LEXIS 933

Opinions

LATTIMORE, Judge.

— Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year and six months in the penitentiary.

We find in the record three bills of exception. Bill No. 1 presents the appellant’s exception to the refusal of the trial court to quash- the indictment because, as set out at length, he insists that the special judge who presided at the term at which the indictment was returned, was not legally elected, and was therefore not qualified. We have examined the bill and also the testimony adduced upon the hearing of the motion to quash, and are of opinion that the action of the trial court in declining the motion was correct. The fact that it took the vote of the county judge and the district attorney who were disqualified by reason of holding other offices probably, from themselves being selected to act as said special judge, to make up the majority of the votes cast for the special judge at the election ordered because of the illness of the regular judge at the opening of the term, would not furnish ground for claiming that said special judge was not elected by a majority of the attorneys present at the opening of court.

Bill No. 2 presents appellant’s objection to the testimony of the officer who searched appellant’s premises and found thereon intoxicating liquor. It seems to be claimed that the affidavit for the search warrant in this case did not sufficiently state that appellant’s residence was a place where, intoxicating liquor was being sold and manufactured. As we understand it, the affidavit directly alleges that said dwelling was a place where whisky, wine, beer, etc., “are illegally possessed, sold and manufactured in said private dwelling, in violation of the law”; hence there is no merit in the contention.

The third bill was to the introduction of the testimony of the searching officers because of supposed defects in the affidavit for the search warrant. Appellant asserts that the description of the premises is too uncertain and indefinite. The affidavit describes the premises as a certain private dwelling occupied and controlled by Paul Garza as his residence, located on lots 7, 8, 9, 10, 11 and 12, Block G, Sinaloa Addition to the town of Sonora, Texas. We think this is a sufficient description.

It is next complained that - the search warrant itself is uncertain and indefinite in its attempted description of the article or thing for which search was to be made. The search warrant commanded search of the premises described for intoxicating liquor and instrumentalities as described in the affidavit. We think this a sufficient command of the search warrant. It is also asserted that the affidavit shows on its face to be based on information and belief. We find in the affidavit, and stated as a part thereof, that one of the affiants says he personally saw a man leaving appellant’s house with beer which he claimed to have purchased therein^ We think the affidavit not open to this objection: The facts in evidence appear to be sufficient to justify the verdict. We have examined the brief and the authorities on file for the appellant, but do not find ourselves able to agree with the contentions made.

No errors appearing, the judgment will be affirmed.

Affirmed.

Hawkins, J., absent.