
    ARNOLD v. STATE.
    (No. 11784.)
    Court of Criminal Appeals of Texas.
    May 23, 1928.
    Rehearing Denied June 23, 1928.
    1. Criminal law <&wkey;394 — One objecting to result of search for insufficiency of application must prove contents of affidavit’either by exhibiting it as original evidence or by secondary evidence. •
    When searching officer produces a search warrant, formal on its face and purporting to have been issued by an authorized magistrate, one who objects to result of search upon ground that warrant was not based upon a proper application is required to make proof of the contents of the affidavit either by exhibiting it as original evidence or by secondary evidence as the circumstances may demand.
    2. Criminal law <&wkey;l 144(12) — Court is presumed to have received evidence properly.
    The court having received evidence of the result of search, the presumption prevails that he did not receive it improperly.
    3. Criminal law &wkey;>l I44( 12) — Court of Criminal Appeals in passing on objection to affidavit for search warrant presumes that lower court properly received evidence.
    Where the objection is that the affidavit supporting the search warrant was insufficient, the Court of Criminal Appeals must act upon the presumption that the lower court properly received the evidence, unless the record exhibits in some authentic manner the contents of the affidavit either in detail or in substance.
    4. Searches and seizures <&wkey;7(27) — Remark of defendant’s brother to officers held not to show consent to search for liquor.
    In prosecution for possession of liquor for purpose of sale, remark of defendant’s brother, when advised by officers that they had search warrant, telling them, “All right; go ahead and search,” held not to show that search was authorized by consent.
    5. Witnesses &wkey;v337(5) — Defendant as witness in own behalf may be impeached by showing that he was charged with felony or offense imputing moral turpitude.
    It was not incompetent to prove for the purpose of impeaching or discrediting defendant, who had become a witness in his own behalf, that he was charged by complaint, information, or indictment with the commission of a felony or offense imputing moral turpitude.
    6. Criminal law <&wkey;4!9, 420(10) — Evidence as to statements to witness held properly excluded as hearsay.
    In prosecution for possession of liquor for purpose of sale, testimony as to what a certain person had said as to leaving liquor in defendant’s premises held properly excluded as hearsay.
    7. Criminal law <&wkey;371 (10) — Testimony to sale held admissible on intent in prosecution for possession for purpose of-sale.
    In prosecution for possession of liquor for purpose of sale, testimony as to certain sale was admissible as bearing upon the intent to Vhieh the whisky was possessed.
    On Motion for Rehearing.
    8. Criminal law <&wkey;322 — Performance of official duty is presumed.
    Correctness of official acts is presumed until the contrary is shown.
    Appeal from District Court, Angelina County; C. A. Hodges, Judge.
    Frank Arnold was convicted of possessing, intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    Adams & McAlister, of Nacogdoches, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The possession of intoxicating liquor for the purpose of sale is the offense; punishment fixed at confinement in the penitentiary for a period of five years.

Appellant conducted a grocery store and resided with his family in a four-room house adjoining the store and connected with it by a little hallway, as the evidence is understood. Possessed of a search warrant, a deputy sheriff and three other officers searched the store and also the dwelling of the appellant. In the store they found'a case of empty half pint flasks, and in the dwelling they found six half pints of whisky in bottles, one quart bottle, and some whisky in a gallon jug. On the day that the raid was made, the appellant left his home about 9 o’clock in the morning and went to another town. He did not return until some hours after the raid was made. His wife, after doing her housework (cleaning rooms, etc.), went to see her dressmaker at another town, leaving about 11 o’clock and returning about 30 minutes before the raid took place. In the absence of the appellant, the store was conducted by his brother, Monroe Arnold, who was present at the store at the time of the raid. All of these, that is, the appellant, his wife, and his brother, testified that they had no knowledge of any whisky upon the premises. The appellant and his wife testified definitely that there was no whisky there at the time of their departure and none at the time the appellant returned.

It was the theory of the appellant that if any whisky was found by the officers it was placed there by his cousin, Bernice Barker. It seems that Barker, who resided in Dou-.isiana, had been visiting the appellant for. some two or three days and had' been drinking. According to Monroe Arnold, on the day of the raid, Barker came to the store under the influence of liquor and told him that he had some liquor and asked that he be permitted to leave it in the store. Arnold refused to consent to this, and Barker left, going through the dwelling. Arnold supposed that Barker would take with him any whisky that he had. Arnold testified that he knew of no whisky upon the premises. A witness, who was engaged in hiring Ford cars, testified that Barker, on the evening after the time of the raid, came to the witness apparently in his “cups” and asked to rent a car. The witness refused, but finally conveyed Barker to a railway station, he stating that he was in trouble and wanted to go home.

The receipt of the testimony of the three officers who searched the store and dwelling of the appellant to the effect that they saw six pints of whisky and some in a gallon jug in the dwelling of the appellant was opposed upon the ground that the search warrant under which they acted was illegal and unauthorized in that it was not predicated upon an. affidavit setting forth the facts showing probable cause. In qualifying the bills, the court states that one of'the officers testified that the whisky was seen by him before entering the residence. Our reading of the statement of facts leads to the conclusion that the receipt of the testimony could not be. upheld upon that ground. It appears perfectly clear from the evidence that the officers entered the store of the appellant for the purpose of searching it; that before entering it, a search warrant had been procured and that the warrant was in the possession of Garrison, who took with him for the purpose of making the search three other officers. They were all acting together, and told the parties in the house that they were acting under a search warrant. The dwelling house and the storeroom were connected. The fact that while searching the store under the warrant one of the officers may have looked into the kitchen of the dwelling and there observed some whisky would not justify the search. They were on the premises by no authority save the search warrant. The case of Steverson v. State (Tex. Cr. App.) 2 S.W.(2d) 453, is analogous. The bills of exceptions disclose the fact that the officers did possess a search warrant ; that they acted under a search warrant in making the search; and that the discovery of the whisky was the result of the search. However, the bills fail to show that the search warrant was illegal or informal or that the affidavit supporting it was lacking in any of the requisites which the law demands as a predicate for the issuance of a search warrant. Such requisites are set out in the statutes cited in Chapin’s Case, 107 Tex. Cr. R. 477, 296 S. W. 1095. The appellant objected to the evidence mentioned, ‘-‘for the reason that the search warrant was issued upon an affidavit based solely upon information and belief, stating no facts as a ground for the belief.” As the bills appear in the record, this is merely a part of the objection made. In order to support the objection, it would be essential that the record show that in fact the search w’arrant was issued upon an insufficient affidavit. Such fact could be shown by making the affidavit a part of the bill or by referring to it in the statements of facts if contained therein, or by a certificate of the judge who tried the case that the affidavit was based upon information and belief alone. However, in the present instance, there is not set out in the statement of facts, or otherwise, the affidavit or the search warrant, and this court is informed alone by the recitals in the objection made that the appellant claims the affidavit to be insufficient and the search warrant therefore unauthorized. The ruling of the court implies that the grounds were not tenable. It has often been held that the grounds of objection are not an adequate substitute for a certificate of the judge that the grounds are based upon facts, gee Wallace v. State, 100 Tex. Cr. R. 499, 271 S. W. 911; Neely v. State, 100 Tex. Cr. R. 76, 271 S. W. 922; Boyd v. State, 100 Tex. Cr. R. 98, 272 S. W. 134; Gilliam v. State, 100 Tex. Cr. R. 67, 272 S. W. 154; McKee v. State, 100 Tex. Cr. R. 501, 272 S. W. 191; and other cases collated in Vernon's Tex. C. C. P. 1925, vol. 2, p. 403; also Phillips v. State, 104 Tex. Cr. R. 308, 283 S. W. 817; Pierce v. State, 106 Tex. Cr. R. 116, 290 S. W. 1095; Watkins v. State, 102 Tex. Cr. R. 219, 277 S. W. 397.

Looking to the testimony in the present instance, the officers testified that they had a search warrant, and it appears from the evidence that the warrant was read or exhibited to the wife of the appellant and to his brother, who were both present at the time the search was made. The rule has been stated, and is regarded as sound, that when the searching officer produces a search warrant, formal on its face and purporting to have been issued by an at&horized magistrate, that one objecting to the result of the search upon the ground that the warrant was not based upon a proper application is charged with the duty of making proof of the contents of the affidavit, either by exhibiting it as original evidence or by secondary evidence as the circumstances may demand. Upon this subject, see Chorn v. State, 107 Tex. Cr. R. 521, 298 S. W. 290; Henderson v. State (Tex. Cr. App.) 1 S.W.(2d) 300; Skiles v. State (Tex. Cr. App.) 2 S.W.(2d) 436, and cases therein cited.

The court having received evidence of the result of the search, the presumption prevails that he did not receive it improperly. See Goree v. State, 106 Tex. Cr. R. 528, 293 S. W. 828; Arredondo v. State, 106 Tex. Cr. R. 78, 290 S. W. 1105. In an instance like the present, where the objection is that the affidavit supporting the search warrant was insufficient, this court must act-upon the presumption mentioned unless the record exhibits in some authentic manner the contents of the affidavit, either in detail or in substance.

The remarks attributed to the appellant’s brother when advised by the officers that they had a search warrant to search the premises wherein he said, “All right; go ahead and search,” do not show that the search was authorized by consent. See Cornelius on Search and Seizure, § 16; also, Hall v. State, 105 Tex. Cr. R. 365, 288 S. W. 202.

The appellant having become a witness in his own behalf, it was not incompetent to prove for the purpose of impeaching or discrediting him that he was charged by complaint, information, or indictment with the commission of a felony or offense imputing moral turpitude. The bills complaining of the introduction of such testimony are without merit. See Lights v. State, 21 Tex. App. 313, 17 S. W. 428; and other cases cited in Branch’s Ann. Tex. P. C. § 167; also, Underhill’s Crim. Evidence (3d Ed.) § 387.

The bills of exceptions complaining of the rejection of proof of the declaration of Bernice Barker that he had left six or eight pints of whisky and a jug in the side room leading from the house to the store does not present error. The testimony was properly excluded as hearsay. The declaration was made to a third party after the search, and is brought within none of the exceptions to the rule excluding hearsay statements.

There was testimony in the record from Dick Lazarene that he purchased from the appellant some six months before the date of the present offense some 50 or 60 gallons of whisky. The bill complaining of the fact that the county attorney has asked the appellant how much whisky he had sold to Lazarene, and if he did not know that he had sold him 56 gallons, is not deemed to present error. If the appellant had possessed 50 or 60 gallons of whisky and sold it to Lazarene, the sale was admissible as bearing upon the intent with which the whisky was possessed. The complaint of the receipt of the testimony of Lazarene to the effect that he did buy from the appellant a quantity of whisky was not subject tb the objection made that it exhibited an extraneous offense. According to La-zarene, the transaction took place within-ths period of limitation, and it was competent for tlie state to rely upon it in support of the averment in the indictment charging the appellant with the possession of intoxicating liquor for the purpose of sale. The state having introduced evidence of more than one transaction within the period of limitation, it is possible that upon request it would have been forced to elect as between the transactions. The testimony of Lazarene to the effect that in his dealings with the appellant, who claimed to be a revenue officer and received compensation from Lazarene for protecting him in illicit dealings in intoxicating liquor, is not deemed to have been inadmissible as proving an irrelevant and extraneous offense. It was competent and relevant evidence upon the issue introduced by the state to the effect that the appellant has possessed a. quantity of whisky and sold it to the witness Lazarene. It bore upon the intent with which he possessed the whisky, if, in fact, the jury believed the testimony of the witness Lazarene to be true. The issues of fact were submitted to the jury in a charge of which no complaint is made. The charge submitted in an affirmative way the only defense which the appellant interposed, which was that the whisky found in his dwelling was there without his knowledge or consent. The jury was instructed that if the evidence raised in their minds a reasonable doubt upon that subject to resolve it in favor of the appellant and acquit him.

Finding no error presented for review which warrants a reversal, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant renews his complaint of what the officers found upon their search of his house. The complaint appears in bills Nos. 1, 2, and A. Many apt authorities are cited in our former opinion holding that no matter how strongly stated in a bill of exceptions be the objection urged to any matter deemed objectionable, the facts supporting such objection and making it well taken must be set out in the bill itself. No such facts appear in any of the bills referred to. The grounds of objection are stated in each, but the trial judge, with the facts before him, may have known there was no foundation in fact upon which any such objection could rest. Under all the authorities we presume the correctness of official acts until the contrary is shown. The contrary is not shown in matters of this kind merely by a ■ statement of the objections in the bill. We have read appellant’s brief, have examined the propositions A, B, and I, but the force of the brief and the logic of appellant’s counsel in his argument cannot make up for the absence of faets in the bill of exceptions.

The motion for rehearing will be overruled. 
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