
    KELSEY v. STATE.
    (No. 11188.)
    Court of Criminal Appeals of Texas.
    March 31, 1928.
    1. Criminal law <⅜»394 — Evidence obtained by search of defendant’s house under warrant issued on information and belief held inadmissible.
    In prosecution for possessing liquor for sale, evidence obtained by search of defendant’s house under search warrant issued on information and belief, without statements of facts or circumstances on which belief was grounded, held inadmissible.
    2. Criminal law 169(2) — Improper admission of officers’ testimony as to finding whis-ky in defendant’s house, where merely repetition of defendant’s testimony, held not ground for reversal.
    Where defendant, accused of possessing liquor, testified in her own behalf that officers found in her house two jars containing whis-ky, receipt of officers’ testimony to the same effect, though improper, was not ground for reversal.
    3. Criminal law.<§=>l 169(2)— Erroneous admission of testimony is not prejudicial, where same fact is proved by other testimony not objected to.
    Erroneous admission in evidence of testimony is not ground for reversal, when the same fact is proved by other testimony against which no objection is made, especially when the other testimony is given by the defendant.
    4. Criminal law <⅜=*1169(2, 3) — Admission against defendant of prejudicial testimony, not admitted by him or proved by other means, requires reversal.
    Admission of material and prejudicial testimony against defendant, which has not been admitted by him or proved by other means without objection, is ground for reversal.
    5. Criminal law <3=>I 169(2) — Admission, in prosecution for possessing liquor for sale, of testimony concerning whisky found in yard and garage under insufficient search warrant, held prejudicial, notwithstanding defendant’s testimony as to whisky in house.
    In prosecution for possessing liquor for sale, where warrant for search of premises for intoxicating liquor was insufficient because issued on information and belief, admission of testimony of officers as to finding additional jars of whisky in yard and garage constituted prejudicial error, requiring reversal, notwithstanding defendant had herself testified that two jars containing whisky were located in the house.
    6.Criminal law 1 ½(2) — Argument in liquor prosecution, on (aiiure to testify of defendant’s 'husband previously convicted on similar testimony, held improper.
    In prosecution of wife for possessing liquor for sale, after husband had been tried and convicted, in which defense was that wife poured out whisky to save her husband, argument of state’s counsel commenting on failure of husband to testify held improper, where it appeared he was convicted on practically the same testimony, and was therefore not available as a witness.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    Mrs. E. E. (Kittie) Kelsey was convicted of unlawfully possessing 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.

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

Several officers, possessed of a search warrant, visited the home of the appellant. Upon entering the house, they observed two fruit jars with whisky in them. According to the officers, upon their arrival, the appellant attempted to empty one of the bottles into a funnel which went through the floor. They found no whisky in the house, though on the porch was a basket containing a lot of empty bottles. In the yard, buried in the ground and in the garage, some other whisky was found. On the premises there were found altogether eleven jars of whisky.

The appellant testified that she knew of the whisky that was in the house, but had no knowledge of any other whisky upon the premises. The evidence showed that, at the time of the search, her husband was in jail, charged with violating the law prohibiting the liquor traffic. She said she was undertaking to make bond for him; that, when the officers appeared, she did not know that she was violating the law in pouring the whisky out; that she did it in order to protect her husband against another prosecution.

The search warrant was issued upon information and belief, and stated no fact or circumstance upon which the belief was grounded. Objection was urged against the receipt in evidence of the testimony of the officers showing the result of the search which was made under the search warrant mentioned. The objection should have been ■sustained. The search warrant having been issued upon an improper affidavit, the introduction in evidence of the result of the search thereunder was inhibited by article 727a, C. O. t. 1925. The appellant having testified in her own behalf that the officers found in her house two fruit jars containing whisky, the receipt of the testimony of the officers to the same effect, though improperly received, could not form the basis for a reversal of the judgment. The erroneous admission in evidence of testimony is not ground for a reversal when the same fact is proved by other testimony against which no objection is made. See Vernon’s Crim. Stat. 1916, vol. 2, art. 938, p. 904, notes 27 and 28; and Vernon’s Crim. Stat. 1922, p. 2644, note 27; also Vernon’s Ann. C. C. P. 1925, vol. 3, art. 847, p. 271, note 32. The rule has particular application when the accused gives, without objection, testimony-the same as that erroneously received over objection. See volume last mentioned, page 275, note 33; also Trevino v. State, 83 Tex. Cr. R. 562, 204 S. W. 996; Morse v. State, 85 Tex. Cr. R. 83, 210 S. W. 965; Rodriguez v. State, 89 Tex. Cr. R. 373, 232 S. W. 512; Gonzales v. State (Tex. Cr. App.) 299 S. W. 901; Bonilla v. State (Tex. Cr. App.) 2 S.W.(2d) 248; Stone v. State, 89 Tex. Cr. R. 416, 232 S. W. 818.

The rule is not so construed as to render harmless material and prejudicial testimony against the accused which has 'not been admitted by him or - proved by other means without objection. In the case of Saddler v. State, 20 Tex. App. 195, the rule is thus stated:

“ ‘The admission of illegal evidence of an important fact material and pertinent to the issue, and which is additional to other facts legally in evidence, is erroneous, and that a conviction in such case will not be permitted to stand.’ * * * McWilliams v. State, 44 Tex. 116.”

In the present instance, the appellant testified that She had no knowledge of any whisky on the premises except that which was in her house. • By her testimony, she presented a defensive theory, namely, that the whisky found in her house had been placed there by her husband before his arrest, and that her act in attempting to pour it out was to shield him against another prosecution. Her intent in possessing the whisky which was found in the house was therefore a controverted question for the jury. In passing upon that issue, however, there was, by the manner in which the case was tried, rendered available to the jury the testimony of the' officers that they found nine additional jars of whisky, not in the house or the immediate possession .of the appellant, but in the yard and garage. Of this last-mentioned whisky, as above stated, she disclaimed any knowledge. The record standing thus, it cannot be properly said that the testimony of the officers with reference to that part of the whisky which they claimed to have found in the yard and garage was not calculated to injure the appellant. It was calculated to influence the jury upon the controverted issue of intent with reference to the whisky that was in the house and of knowledge of that which was on the premises; also with reference to the penalty which was fixed at two years above the minimum allowed by law.

A bill of exceptions complains of the argument of counsel for the state as follows:

“Gentlemen, don’t you know that, if this defendant’s testimony was true, that her husband had placed the whisky in that house, her husband, although he is a bootlegger, would have had enough manhood to get on the witness stand in her behalf and tell you that it was his whis-ky. He would have done so even though he 'knew it would result in his getting another term in the penitentiary himself.”

It was in evidence at the time the appellant was tried that her husband had been tried and convicted, and the impropriety of the remarks cannot be doubted. The inference from the record is plain that he was convicted upon practically the same testimony as that which bore upon the appellant’s case, and that he was therefore not available to the appellant as a witness. However, as the matter appears in the bill of exceptions, we would not feel warranted in reversing the judgment on account of the argument mentioned.

For the error pointed out, the judgment is reversed, and the cause remanded. 
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