
    KING v. STATE.
    (No. 11193.)
    Court of Criminal Appeals of Texas.
    March 28, 1928
    Criminal [aw @=>1169(1)—Receipt of testimony as to result of illegal search held harmful, in absence of other evidence of possession of liquor for sale (Code Cr. Proc. 1925, art. 727a).
    In trial for possessing intoxicating liquor for sale, error in receiving officers’ testimony as to result of search of defendant’s house under warrant not based on proper affidavit, in violation of Code Cr. Proc. 1925, art. 727a, held not harmless, in view of jury’s assessment of penalty far in excess of minimum, where defendant's only admission of possession was in her testimony that she had liquor in beer bottles found for her own use, and they were not introduced in evidence nor size thereof stated.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    May King was convicted of possession of intoxicating liquor for the purpose of sale, and she appeals.
    Reversed and remanded.
    Chastain & Judkins, of Eastland, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Possession of intoxicating liquor for the purpose of sale is the offense ; punishment fixed at confinement in the penitentiary for a period of 2½ years.

There were two counts in the indictment, one charging the sale of intoxicating liquor; the other the unlawful possession thereof.

Possessed of a search warrant, certain officers searched the house occupied by the appellant and found a jug of whisky, a number of bottles of beer, and some wine. There was testimony that the appellant had sold whisky. The transaction occurred in February, 1927. A witness testified that he bought a bottle of whisky from the appellant some four or five months before that time. However, this testimony was controverted by his own affidavit to the contrary and by the testimony of the appellant, and the court charging sale was abandoned. Her entire testimony on the subject of possession was as follows:

“I was at home on February 25th, on the occasion when the officers of the law visited my house. * * * I recognize those two bottles. It is my property. I never did deny that it was my property. I had this liquor for my own use.”

The warrant for the search was illegal in that it was not based upon the proper affidavit. The introduction of proof of the result of the search was inhibited by the statute, article 727a, O. O. P. 1925, and was received over appropriate objection by the appellant, and the ruling is properly presented for review. In meagerness of other testimony, the error in receiving the testimony of the officers cannot be regarded as harmless. Except in the testimony quoted, the appellant made no admission of the possession of anything. The only bottles mentioned by the officers were beer bottles. One or more of them seem to have been on hand at the trial, though they do not appear to have been introduced in evidence, nor is the size of them stated. If the possession by her of two bottles of intoxicating liquor be inferred, the inference that it was possessed for sale could come alone from the testimony of the searching officers which was improperly before the jury. Such improper testimony was no doubt appropriated by the jury on the issue of intent and the penalty, which was fixed, far in excess of the minimum.

The judgment is reversed and the cause remanded. 
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