Montalbano v. State

34 S.W.2d 1100, 116 Tex. Crim. 242, 1930 Tex. Crim. App. LEXIS 721

• Court: Court of Criminal Appeals of Texas
• Decided: November 26, 1930
• Docket: No. 13558.
• Status: Published

Opinions

MORROW, Presiding Judge.

The unlawful possession of intoxicating liquor for the purpose of sale is the offense; penalty, confinement in the penitentiary for one year.

The evidence is sufficient to convict of the offense charged. It was given by an officer who acted under a search warrant.

Notice of appeal was given on the 23rd day of November, 1929. The bill of exception appears to have been filed on December 26, 1929. The statute allows no more than thirty days after notice of appeal for filing bills of exception unless the time is extended by an order entered by the trial judge. In the present instance no such order appears. See Art. 760, C. C. P. The bill of exception challenging the legality of the search seems to present no error. The search warrant was verified by the affidavit of two witnesses, and its substance is in accord with Art. 691, P. C., of this state. Some reference is made by the appellant to section 25 of the National Prohibition Act. The form of affidavit prescribed by the Federal Government is not controlling in the State Prohibition Laws. The substance of the two, however, are not materially different. See Cornelius on Search & Seizure, 2nd Ed. p. 452. Art. 727a, C. C. P., as amended by the Acts of the 41st Leg., 2nd Called Session, renders inadmissible evidence obtained by any officer or other person in violation of the Constitution or laws of the State of Texas, or of the Constitution of the United States of America.

The judgment is affirmed.

Affirmed.

Hawkins, J., absent.