
    WILSON v. STATE.
    (No. 10281.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1927.)
    1. Searches and seizures &wkey;>3 (4) — Caption In affidavit for search warrant reciting word “his,” does not render affidavit insufficient, where otherwise shown to have been made by two witnesses (Pen. Code 1925, art. 691).
    Sufficiency of affidavit for search warrant is determined by entire context, including jurat and signatures, and use of word “his” in caption does not make affidavit insufficient under Pen. Code 1925, art. 691, as not sworn to by two witnesses, where remainder of affidavit showed that it was made by two witnesses.
    2. Searches and seizures &wkey;>3 (8)— Description of property in search warrant as “residence of Lula Wilson in Texarkana, Bowie county, and being 609 West Elm street,” held sufficient (Pen. Code 1925, art. 691).
    Description of property in affidavit for search warrant as residence of Lula Wilson, situated in Texarkana, Bowie county, and being 609 West Elm street, city of Texarkana, was ■sufficient under Pen. Code 1925, art. 691.
    3. Criminal law &wkey;>l 114(2) — Bill of exceptions, to be considered, must state facts on which objections are based.
    Bill of exceptions, to authorize consideration of question, should state facts on which- objections are based, and mere recital that objections were made without certificate of judge that ■grounds stated existed in fact was insufficient.
    4. Criminal law <&wkey;>M20(8) — Bill of exceptions to admission of evidence of search and finding of whisky, not showing when and where search was made, is insufficient.
    Bill of exceptions to admission of evidence that witness made search and found whisky, failing to show when and where search was made, >is insufficient to be considered on appeal.
    5. Criminal law &wkey;>! 120(8) — BUI of exceptions, merely reciting objectionable testimony as to finding whisky, held insufficient for consideration on appeal.
    Bill of exceptions to admission of testimony of witness that he found loose boards in floor and found whisky in. ground fails to give any facts which would warrant Court of Criminal Appeals in considering it.
    6. Criminal law &wkey;>IH9(l) — Bill of exceptions to refusal of instructed verdict for defendant, giving no facts on which it might he appraised, could not be considered.
    Bill of exceptions to refusal of court to instruct verdict of not guilty because of uncontra-dicted testimony that defendant kept whisky for sickness held insufficient for consideration by Court of Criminal Appeals, where there were no facts on which it might be appraised.
    7. Criminal law &wkey;>l 144(13) — Trial court, in overruling motion to Instruct verdict of not guilty, is assumed to have had good cause.
    Trial court is assumed to have had good cause for overruling motion to instruct verdict of not guilty, and, if necessary, it is assumed that facts averred in motion were not shown to be true.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Annie Lou Wilson was copvicted of unlawful possession of intoxicating liquor, and she appeals.
    Affirmed.
    Sid Crumpton and L. C. Boswell, both of Texarkana, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

There are several bills of exceptions. All of them are addressed to the sufficiency of the affidavit .for a search warrant to admit the evidence of the officers in making the search. The specific attack upon the affidavit is: First, that it is to search.a “private residence” ; second, that it was not sworn to by two witnesses; third, that it insufficiently describes the property. In the caption of the affidavit it is said:

“ * * * Personally appeared A. K. Neely & H. E. Sherrer of said Bowie county, who being by me duly sworn, on his oath, deposes and says,” etc.

At the bottom of the affidavit there appears the signatures of A. K. Neely and H. E. Sher-fer. The affidavit also contains the following jurat:

“Sworn to and subscribed before me, on this 22d day of August, 1925. J. W. Hillman, Justice of the Peace, Precinct No. 1, Bowie.”

Th'e property Is described thus ¡

“Residence of Lula Wilson, situated in Texar-kana, Bowie county, Tex., and being 609 West Elm street, city of Texarkana, Tex.”

Tbe attacks mentioned were properly overruled. Tbe use of the word “his” in tbe caption does not give character to tbe affidavit, but the whole context, including the jurat and signatures, is to be considered. Viewed in that light, the writing leads definitely to the conclusion that it was not made by one person alone but by two persons. It may be added that the statute (Pen. Code 1925, art. 691), requiring two signatures pertains to a “private dwelling,” and reads thus:

“ * * * A private dwelling occupied as such, unless some part of it is used as a store, shop, hotel or boarding house, or for some purpose other than a private residence.”

It is doubtful whether the recitals in the affidavit are sufficient to bring it within .the purview of the statute which demands two witnesses. On the face of the affidavit there is perceived no insufficient description.

In bill No. 2 it is stated that McDonald, a federal officer, testified as follows:

“We did make a search and found two one-half gallon fruit jars full of corn whisky.”

There is nothing more stated, and, so far as the. Diets ■ are concerned, the bill does not show where the search was made. Appellant objected -to the testimony on various grounds, but the bill fails to contain any certificate of the judge to the effect that any of the grounds stated existed in fact. It is imperative that a bill of exceptions, to demand or authorize consideration, should state the facts upon which the objections are based, and the mere Tecital that certain objections were made does not comply with the law. See Belcher v. State, 96 Tex. Cr. R. 561, 258 S. W. 815; Plunk v. State, 98 Tex. Cr. R. 140, 265 S. W. 158; Stone v. State, 98 Tex. Cr. R. 864, 265 S. W. 900; Vernon’s Tex. Code of Crim. Proc. 1925, vol. 2, art. 667, notes, pp. 368, 369.

Bill No. 3 recites that A. H. Neely testified:

“We made a search and found one quart jar full of whisky and one quart with a small quantity in it and two one-half gallons full of whisky.”

This bill-fails to show when and where the search was made. Objection was urged against it upon several grounds, but, touching this matter, the remarks made concerning bill No. 2 are pertinent.

Bill No. 4 relates to the testimony of the witness Goodwin, who testified thus:

“I raised up an art square, found a loose board in the floor and found the whisky on the ground.”

This, like the other bills mentioned, fails to give any facts such as would warrant the court in giving it consideration.

Bill No. 5 recites that, after the state had rested, the defendant moved the court to instruct a verdict of “not guilty” for the reason that the witness Goodwin, in his direct testimony, testified:

“At the time we found this whisky, Annie Lou made a statement right there about the whisky. She said it was hers. She said she was sick and always kept some whisky.”

Appellant contends that said testimony was exculpatory; that, there being no testimony or effort by the state to disprove the truthfulness thereof, she was entitled to a verdict of “not guilty.” The court overruled the motion. This bill, like the others, gives no fact upon which it may .be appraised. In support of the action 'of the court in overruling the motion, it must be assumed that he overruled it for some good cause. It would be assumed, if necessary, that the facts averred in the motion were not shown to be true. See Fowler v. State, 89 Tex. Cr. R. 623, 232 S. W. 515; Vernon’s Tex. C. C. P. 1925, vol. 2, art. 667, p. 367, notes.

The evidence being sufficient to support the conviction, the judgment is affirmed. 
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