Gonzales v. State

Court of Criminal Appeals of Texas

Gonzales v. State

18 S.W.2d 618, 113 Tex. Crim. 122, 1929 Tex. Crim. App. LEXIS 566

CourtCourt of Criminal Appeals of Texas

DecidedMay 15, 1929

DocketNo. 12566.

StatusPublished

Cited by13 cases

This text of 18 S.W.2d 618 (Gonzales v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gonzales v. State, 18 S.W.2d 618, 113 Tex. Crim. 122, 1929 Tex. Crim. App. LEXIS 566 (Tex. 1929).

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CHRISTIAN, Judge.

— The offense is possession of intoxicating liquor for the purposes of sale; the punishment, confinement in the penitentiary for one year.

Officers searched appellant’s residence and found therein a large quantity of intoxicating liquor. On the trial of the case the court determined that the search warrant was void, but reached the conclusion that appellant consented to the search. Timely objection was interposed to the testimony of the officers touching the result of the *123 search on the ground that the search warrant was void. In the absence of the jury one of the officers testified that when they went to the door of appellant’s dwelling he invited them in; that they saw a bottle of whiskey and beer bottles on a table in the room they entered and stacks of beer cases along the wall; that he, the officer, picked up the bottle of whiskey and said to appellant: “I am an officer and want to search your place;” that appellant replied, “All right;” that he did not tell appellant at the time he told him he wanted to search his place that he was armed with a search warrant; that he delivered a copy of the search warrant to appellant after appellant had stated that it was all right for him to search the place. We are of the opinion that the language used by appellant was sufficient to show a waiver and sustain the action of the trial court in admitting the testimony of the officers. One may consent to the search of his premises and thereby waive irregularities in the search warrant or dispense with the search warrant altogether. Hall v. State, 288 S. W. 202; Williams v. State, Opinion Number 11,976, delivered November 4th, 1928, and not yet reported.

In his argument to the jury the district attorney used language as follows:

“The law steps in and says: ‘Damacio Gonzales, I hold that your possession of this liquor is for the purpose of sale, but you can dispute that and show that your possession was a lawful one — do it by witnesses; yes, sir.’ The record is as silent as the tomb as to any rebutting evidence, but on the contrary, gentlemen, when you study the situation as it existed there, the presence of so much beer and whiskey, the little table and the guest there, the empty glasses on the table, empty beer bottle, the whiskey showing use from the bottles, why, you are led, gentlemen of the jury, as reasonable men, to the irrefutable conclusion, irrespective of the presumption of the law, that this man had that liquor there unlawfully and that he was engaged in the sale of it.”

Appellant objected to the foregoing remarks as being a comment on his failure to testify. While the bill shows affirmatively that appellant did not testify on his trial, it is not shown that there were no witnesses other than appellant who could have testified that appellant’s purpose in possessing the whiskey was lawful. Such being the case, the bill of exception is insufficient, and therefore not subject to review. Mitchell v. State, 6 S. W. (2d) 753.

Finding no error, the judgment is affirmed.

Affirmed.

*124 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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CHRISTIAN, Judge.

— The offense is possession of intoxicating liquor for the purposes of sale; the punishment, confinement in the penitentiary for one year.

Officers searched appellant’s residence and found therein a large quantity of intoxicating liquor. On the trial of the case the court determined that the search warrant was void, but reached the conclusion that appellant consented to the search. Timely objection was interposed to the testimony of the officers touching the result of the *123 search on the ground that the search warrant was void. In the absence of the jury one of the officers testified that when they went to the door of appellant’s dwelling he invited them in; that they saw a bottle of whiskey and beer bottles on a table in the room they entered and stacks of beer cases along the wall; that he, the officer, picked up the bottle of whiskey and said to appellant: “I am an officer and want to search your place;” that appellant replied, “All right;” that he did not tell appellant at the time he told him he wanted to search his place that he was armed with a search warrant; that he delivered a copy of the search warrant to appellant after appellant had stated that it was all right for him to search the place. We are of the opinion that the language used by appellant was sufficient to show a waiver and sustain the action of the trial court in admitting the testimony of the officers. One may consent to the search of his premises and thereby waive irregularities in the search warrant or dispense with the search warrant altogether. Hall v. State, 288 S. W. 202; Williams v. State, Opinion Number 11,976, delivered November 4th, 1928, and not yet reported.

In his argument to the jury the district attorney used language as follows:

“The law steps in and says: ‘Damacio Gonzales, I hold that your possession of this liquor is for the purpose of sale, but you can dispute that and show that your possession was a lawful one — do it by witnesses; yes, sir.’ The record is as silent as the tomb as to any rebutting evidence, but on the contrary, gentlemen, when you study the situation as it existed there, the presence of so much beer and whiskey, the little table and the guest there, the empty glasses on the table, empty beer bottle, the whiskey showing use from the bottles, why, you are led, gentlemen of the jury, as reasonable men, to the irrefutable conclusion, irrespective of the presumption of the law, that this man had that liquor there unlawfully and that he was engaged in the sale of it.”

Appellant objected to the foregoing remarks as being a comment on his failure to testify. While the bill shows affirmatively that appellant did not testify on his trial, it is not shown that there were no witnesses other than appellant who could have testified that appellant’s purpose in possessing the whiskey was lawful. Such being the case, the bill of exception is insufficient, and therefore not subject to review. Mitchell v. State, 6 S. W. (2d) 753.

Finding no error, the judgment is affirmed.

Affirmed.

*124 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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18 S.W.2d 618, 113 Tex. Crim. 122, 1929 Tex. Crim. App. LEXIS 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzales-v-state-texcrimapp-1929.

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