
    McFARLAN v. STATE.
    (No. 10738.)
    Court of Criminal Appeals of Texas.
    March 23, 1927.
    1.'Criminal law <®=369(6)—Evidence of defendant’s arrest near still on night of alleged offense of possession of liquor held admissible.
    Evidence in liquor case of defendant’s arrest in house containing equipment for manufacturing liquor on same night with alleged offense of possessing liquor for sale held admissible as tending to show whisky in his possession for purpose of sale.
    2. Criminal law <§=394—Evidence against defendant, procured under warrant for search of another’s premises, held admissible.
    Evidence of finding defendant’s whisky on premises of another under search warrant for those premises held admissible, since only person wronged could complain of illegal search.
    3. Criminal law <§=l 169(12)—Permitting sheriff to testify to defendant’s oral statement in
    . jail without warning, held harmless error in liquor case (Vernon’s Ann. C. C. P. art. 727).
    ' In liquor case, permitting sheriff to testify concerning defendant’s oral statement as to residence made in jail and without warning held error, under Vernon’s Ann. Code Cr. Proc. 1925, art. 727, providing when confession. shall not be used, but not requiring reversal under facts.
    4. Criminal law <@=>1120(3)—Bill of exceptions to rejection of testimony presents no error, where testimony not set out.
    Bill of exceptions for refusal to permit defendant in liquor case_to show he was not connected with still and equipment presents no error, where rejected testimony is not set .out.
    
      5. Criminal iaw <§=a784(l)—Refusing charge on law of circumstantial evidence held error in liquor case, in absence of positive testimony.
    Under testimony not positively showing defendant possessed liquor, but leaving matter to inference, held reversible error, to refuse requested instruction on law of circumstantial evidence.
    Commissioners’ Decision.
    Appeal from District Court, Hopkins County; J. M. Melson, Judge.
    Guy McEarlan was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty.; of Austin, and Robfc M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted of unlawfully possessing intoxicating liquor for the purpose of sale, and his punishment assessed at one year in the penitentiary.

It was the contention of the state, and evidence was introduced to that effect, that the appellant possessed about two gallons of whisky, which was stored in a barn on the premises of one Roy Cowser, and which was discovered and seized by the sheriff, Smith, about the time alleged in the indictment. The record discloses that, on the night preceding the discovery and seizure of said whisky by the sheriff, the state’s witness Sus-tair, while in company with appellant’s brother, overtook appellant on the road, and was asked by appellant if he wanted “a drink,” which the witness declined, that appellant’s brother got out of the witness’ car, went over to appellant’s car, got a jug, and took a drink, but that the witness Sustair did not know what was in the jug, and that from this point the parties drove to the home of Cowser, and there the witness Sustair saw appellant take a tow sack and a jug out of his ear and, go in the direction of the bam, on Cowser’s premises. The appellant failed to testify in his own behalf; he entered a plea of not guilty, filed a plea for suspended sentence, and introduced evidence thereon.

There are four bills of exception in the record. Bill No. 1 complains of the action of the court in permitting the state to prove by the sheriff, Smith, that he arrested appellant on the night of the alleged offense at an old house south of Roy Cowser’s home, while appellant and Cowser were working at planks in the loft of said house, and that he found in said house some barrels of mash, a furnace, worm, still, and other equipment used in the manufacture of intoxicating liquor. The appellant contends that the admission of this testimony was error, in that the state was proving another and extraneous offense in no manner connected with the offense for which he was on. trial. We are unable to ■agree with this contention. Since the appellant was charged with the possession of intoxicating liquor for the purpose of sale, we think this evidence was admissible as tending to show that the alleged whisky was in his possession for that purpose. Ferguson v. State, 96 Tex. Cr. R. 53, 255 S. W. 749; Webb v. State, 100 Tex. Cr. R. 193, 272 S. W. 461.

Bill No. 3 complains of the action of the court in permitting the sheriff, Smith, to testify, over appellant’s objection, that he found in Roy Cowser’s barn a jug and some jars containing whisky, and that at said time he- had a search warrant authorizing him to search said premises and seize said whisky. The appellant contends that the admission of this testimony was error, in that said search warrant only authorized the sheriff to search the premises of Roy Cowser and not any premises of the appellant, and that the evidence discovered in searching Cowser’s premises could not be used against appellant because the officers had no search warrant as to him, and said search was therefore illegal so far as he was concerned. The appellant’s contention in this respect is untenable. If the sheriff was authorized to search the premises of Roy Cowser and there found and seized the whisky in question, which belonged to appellant, then the appellant is not in a position to invoke the protection of the law relative to search warrants, as applied to himself. Only Cowser could urge this objection or defense. Cornelius on Search and Seizure, § 12, p. 62, states:

“The right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not available to any one else”.—citing McDaniel v. U. S. (C. C. A.) 294 F. 769; Essgee Co. v. U. S., 262 U. S. 151, 43 S. Ct. 514, 67 L. Ed. 917, and other authorities.

Also, see Dozier v. State (Tex. Cr. App.) 289 S. W. 45.

Bill No. 5 complains of the action of the court in permitting the sheriff, Smith, to testify, over appellant’s objection, that, after he had placed the appellant in jail, appellant informed him that he lived with Roy Cowser. Appellant objected to this testimony because he was under arrest and in jail at said time, and because he had not been warned and said statement reduced to writing. We are of the opinion that the learned trial judge fell into error in admitting this testimony over appellant’s objection, but that, under the facts of this case, it would probably not be such an error as to require a reversal of the case. See article 727, Vernon’s C. C. P., and authorities there collated.

Bill No. 6 complains of the refusal, of the court to permit appellant to introduce testimony showing and tending to show that he was not connected in any manner with the mash, still, and equipment found by the sheriff in the old house where appellant was arrested. This bill fails to set out the rejected testimony, but merely states the conclusions and opinions of the appellant. For that reason, this court is unable to ascertain whether or not said proffered testimony was in rebuttal of the state’s testimony. This bill, as presented, shows no error.

The appellant strenuously insists that the court erred in refusing to charge the law of circumstantial evidence, after appellant had objected to the general charge because of such failure and after appellant had presented a special charge requesting the submission of this issue to the jury. There was no positive testimony introduced by the state showing that the appellant had whisky in his car at the time when the witness Sustair saw appellant’s brother drink from a jug, and there was no positive testimony showing that the whisky found in the barn of Boy Cowser was placed there by appellant or that he possessed same. These potent facts were left to inference from the other testimony introduced by the state, as mentioned above. We think this issue was clearly raised by the testimony, and that the learned trial judge erred in refusing to charge the law thereon. Kinslow v. State, 100 Tex. Cr. R. 140, 272 S. W. 468; Thomas v. State, 103 Tex. Cr. B. 19, 279 S. W. 448; Berry v. State, 104 Tex. Cr. R. 114, 282 S. W. 594; Chew v. State, 104 Tex. Cr. R. 417, 284 S. W. 559.

For the error above discussed, the judgment of the trial court is reversed and remanded.

PEB CUBIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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