
    GURSKI v. STATE.
    (No. 7281.)
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1923.
    Rehearing Denied March 7, 1923.)
    1. Criminal law &wkey;>598(6) — Due diligence to secure witness requires issuance of subpoena before lapse of more than three months after indictment and arrest.
    Due diligence to secure the presence of a witness requires that a subpoena he issued before the lapse of more than three months after the indictment and arrest, in the absence 'of some satisfactory reason for failure to do so.
    2. Criminal law &wkey;>H5! — Refusing continuance to procure witness after due diligence not reversible error unless probability of securing him and importance of testimony indicate abuse of discretion.
    Refusing a continuance to secure a witness, for whom no subpoena was applied for until more than three months after indictment and arrest was not reversible error, even if there was no want of diligence, where the probability of securing him and the importance of his testimony was not such as to indicate an abuse of discretion.
    3. Criminal law &wkey;>1169(6) — Admission of search warrant, affidavit, and return held not reversible error.
    In a prosecution for manufacturing intoxicating liquor, where the arresting officers, who searched defendant’s premises, testified that an affidavit for a search warrant had been made, a warrant issued, and a still and liquor found in defendant’s possession on its execution, and no exculpatory testimony was introduced, admission of the warrant, affidavit, and return was not reversible error, where the penalty assessed was the lowest permissible.
    4. Intoxicating liquors <S&wkey;236(l9)— Conviction of manufactuiring supported by evidence.
    Evidence held sufficient to support a conviction of unlawfully manufacturing intoxicating liquor.
    
      5. Criminal law &wkey;i 169(2) — Erroneous admission of testimony not reversible error where same facts are proved by other testimony without objection.
    Erroneous admission of testimony is generally not ground for reversal where the same facts are proved by other testimony without objection.
    6. Criminal law <&wkey;394, 395 — Whisky found on person and premises and! arresting officer’s testimony as to seizure admissible despite absence or insufficiency of search warrant.
    In a prosecution for unlawfully manufacturing intoxicating liquor, the arresting officers’ testimony as to seizure of whisky from defendant’s person, and the whisky itself, as well as their testimony as to finding a still and some whisky on his premises, were admissible, though they had no search warrant or one authorizing search of the premises only.
    7. Intoxicating liquors <&wkey;236( 13) — Proof that whisky is intoxicating not necessary.
    Evidence that liquor found in defendant’s possession was whisky is sufficient proof of its intoxicating nature.
    8. Criminal law <&wkey;459 — Nonexpert witness’ testimony that liquor drunk by him was intoxicating held admissible.
    In a prosecution for manufacturing intoxicating liquor, testimony of a nonexpert that he drank liquor found in defendant’s possession, and that it was intoxicating, was properly received.
    91. Intoxicating liquors <&wkey;236(4) — Residence of defendant’s family on premises on which liquor manufactured insufficient to preclude identification of defendant as offender.
    That the family of one prosecuted for manufacturing intoxicating liquor resided on premises on which whisky and a still in operation were found did not render the circumstances insufficient to identify him as the offender, £he location and condition of the property being such as to justify the jury’s conclusion that the parties dwelling at the premises were aware of the facts.
    Appeal from District Court, Robertson County; W. C. Davis, Judge.
    Mike Gurski was convicted of unlawfully manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    Henry A. Bush and Frank A. Woods, both of Franklin, for appellant.
    W. A. Keeling, Atty. Gen., and C. B. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year. The indictment was filed on the 21st of November, 1921. The trial took place April 19, 1922.

Complaint is made of the ruling of the court in overruling the application for continuance. More than three months elapsed after the indictment and arrest before a sub-pmna for the witness was applied for. The only reason given for the delay is that the subpoena was applied for promptly after counsel for appellant learned the date upon which the case was set for trial, which was about four or five days before the trial. Compliance with the law demanding diligence would have required the .issuance of the subpoena at an earlier date in the absence of some satisfactory reason for the failure to do so. Barrett v. State, 18 Tex. App. 64; Dove v. State, 36 Tex. Cr. R. 105, 35 S. W. 648; Holmes v. State, 38 Tex. Cr. R. 370, 42 S. W. 996; Code Cr. Proc. art. 608, and notations thereof in 2 Vernon’s Tex. Crim. Stat. p. 307, and 1922 Supplement, vol. 2, p. 2446. It may be added, however, that, if there had been no want of diligence, under the facts shown by the bill of exceptions, neither the probability of securing the witness by the delay nor the importance of his testimony was such as to indicate that in overruling the application for a continuance the court abused its discretion.

.The officers procured a search warrant authorizing the search of appellant’s premises for intoxicating liquor. When a short distance from the house, they met the appellant, who was riding in a buggy. At the request of one of the officers, the appellant turned his buggy around and went back to his home, the officer riding with him. The officer told the appellant that it was reported that he was making whisky; that he (the officer) was in possession of a warrant to search his premises. The parties proceeded to the appellant’s house, and in his smokehouse there was found apparatus for making whisky, and on his premises was also found a quantity of whisky.

The state’s counsel introduced in evidence the search warrant, the affidavit therefor, and the return made by the officer who made the arrest and who conducted the search. The contents of these instruments was kere-say. We find nothing in the record which rendered them inadmissible in evidence. In the state of the record, however, it is not discerned in what respect the appellant’s rights could have been injured by the introduction of the evidence mentioned. The officer and his companion, without objection, testified to all of the facts which could have been learned from the documents the introduction of which is complained of. In other words, aside from the information given the jury by the documents, the jury was made to know by the testimony of the officers that the affidavit for the search warrant had been made; that the warrant had been issued; and that upon its execution the still and the liquor were found in the possession of the appellant. No testimony was introduced on behalf of the appellant except that he had not been previously convicted of a felony. Under these conditions apparently the objectionable evidence was but a repetition of that which was legally admitted without objection.

The evidence before the jury, without reference to the documents mentioned, supports the verdict. The penalty assessed was the lowest allowed by law. It is a rule of practice in this state that the erroneous admission of testimony is generally not ground for reversal where the same facts are proved by other testimony without objection. Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169. We will add that under the ruling made in the recent case of Welchek v. State (Tex. Cr. App.) 247 S. W. 524, the search warrant was not necessary to render admissible the testimony of the officers who made the arrest. Upon the arrest of the appellant they took from his possession a pint of whisky. The possession of this whisky, under the evidence detailed by the officers, was a circumstance tending to support the theory of the state that the appellant was engaged in the manufacture of intoxicating liquor. Objection was urged to this proof upon the ground that the search warrant did not authorize the search of appellant’s person. The officers making the arrest of the appellant for the offense of manufacturing intoxicating liquor had the right to take from his possession any property found thereon and hold it for proper disposition, and the law authorized its use against him in evidence, if relevant, to any issue in the case. At least, such is our understanding of the law. See 3 Cyc. of Law & Proc. p. 896; Ex parte Hurn, 92 Ala. 102, 9 South. 515, 13 L. R. A. 120, 25 Am. St. Rep. 23; Renfro v. State, 42 Tex. Cr. R. 393, 56 S. W. 1013; Jones v. State, 85 Tex. Cr. R. 546, 214 S. W. 322.

There being evidence that the liquor found in the possession of the appellant and on his premises was whisky, further proof on the part of the state of its intoxicating nature was not demanded by the law. However, the testimony of a nonexpert witness that he drank some of the liquor, and that it was intoxicating, was properly received. Black on Intoxicating Liquors, § 521, p. 616; 23 Cyc. of Law & Proc. p. 266; Terry v. State, 44 Tex. Cr. R. 411, 71 S. W. 968.

There was found at appellant’s home in his smokehouse a still in operation, running off whisky. The still was introduced in evidence before the jury, and described by the witness as capable of producing whisky. The jury was instructed upon the law of circumstantial evidence. The fact that appellant’s wife and children resided at his home where the offense was committed did not render the circumstances insufficient to identify the appellant as the offender. See Broz v. State (Tex. Cr. App.) 245 S. W. 707, not yet [officially] reported. The location and condition of the property was such as justified the jury in concluding that the parties dwelling at the premises were aware of the operation of the still and the manufacture of intoxicating liquor, and was sufficient to exclude every reasonable hypothesis other'than that the appellant was connected with the commission of the crime. If, in fact, his wife and children were also participants, this would not exculpate the appellant, nor render the evidence adduced upon the trial inadequate to sustain the verdict.

The judgment is affirmed.

On Motion for Iiehearing.

HAWKINS, J.

Appellant insists we were in error in holding harmless the’improper admission in evidence of the search warrant and affidavit therefor. In determining such an issue we must of necessity examine the entire record before us, having in mind also the penalty assessed. We have again reviewed the statement of facts, and, considering that the jury assessed the lowest punishment permissible under a ease made out irrespective of the evidence which was improperly admitted, we believe our conclusion that it should be held not such error as demands a reversal to be correct.

The motion for rehearing is overruled. 
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