
    CARROLL v. STATE.
    (No. 10934.)
    Court of Criminal Appeals of Texas.
    May 25, 1927.
    1. Criminal law &wkey;>364(6) — Testimony that five minutes after arrest defendant, charged with possessing liquor for sale; stated automobile found to contain whisky was his, held res gestae.
    In prosecution for unlawfully possessing intoxicating liquor for sale, deputy sheriff might testify that within about five minutes after his arrest at place where liquor was being made defendant stated in response to a-question that the automobile standing near to the still and in which a gallon of whisky was found belonged to him, over objection that defendant had not been warned, testimony being res gestee.
    2. Criminal law <&wkey;l 170'1/2(3) — Question if character witnesses knew defendant had been indicted prior to offense held not error, where objections were sustained and questions not answered.
    That the district attorney asked defendant’s character witnesses- on cross-examination if they did not know that defendant had been indicted for a felony prior to the date of the offense for which he was then on trial held not error, where the court sustained defendant’s objections to the questions and neither witness made any answer thereto.
    3. Intoxicating liquors <&wkey;228 — Excluding testimony that defendant charged with possessing liquor for sale rented farm where still was found as agent held not error.
    In a prosecution for the unlawful possession of intoxicating liquor for sale, it was not error to exclude defendant’s wife’s testimony that she heard a conversation-between defendant and a third party, in which the latter ashed defendant to help him rent a farm, that defendant later rented the farm where the still was found, and that he was acting solely as agent and had no interest in the farm or control over it.
    4. Searches and seizures <&wkey;7 (9) — Affidavit alleging property was in certain house and on “premises thereof” authorizes search of shed 75 yards from house.
    Affidavit for search warrant stating that “there is concealed at the following described place, to wit, in story and a half house and on the premises thereof located across the road from the house and premises occupied by” a designated person, held sufficient to authorize search of a barn or shed situated about 75 yards from the house.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Premises.]
    Commissioners’ Decision.
    Appeal from District Court, Wichita County ; P. A. Martin, Judge.
    Oscar Carroll was convicted of possessing intoxicating liquor for sale, and he appeals.
    Affirmed.
    J. Earle Kuntz; of Wichita Falls, for appellant.
    Sam D. Stinson, State’s Atty., and Robt/ M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

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

The record discloses that the officers obtained a search warrant, went to the premises in question, and found a still in operation, some whisky, and quite a number ofl barrels that, had contained mash, The still and mash barrels were in a small barn or shed situated about 75 yards from a house which contained a bed and eookstove and which, according to the state’s witnesses, “was fixed up as bachelor quarters.” When the officers approached the place where the whisky was being manufactured, the appellant, a man by the name of Allred, and another party came out of the building, Allred and the third party taking flight,'while the appellant made no effort to escape and was arrested. Allred was captured and brought back to the premises, but the other party escaped. The officers found a gallon of whisky in appellant’s automobile near the still. It was the contention of the state that the appellant was interested in the manufacture ofl the whisky and that the whisky in his car-was possessed for the purpose of sale. Thel appellant failed to testify.

There are four bills of exception in the record.

In bill No. 1 appellant complains of the action of the court in permitting the state to pr6ve by Deputy Sheriff Belcher that as soon as he returned to the place where the whisky was being made, after capturing All-red and within about five minutes after appellant’s arrest, the appellant stated to him, in response to a question, that the automobile standing near the still and in which the gallon of whisky was found belonged to him. The appellant contends that this testimonyl was inadmissible for the reason that he was under arrest and had not been warned. In qualifying this bill, the court states that ha admitted the testimony complained of as res gesta». We are of the opinion that this bill shows no error and that the testimony was properly admitted. Nugent v. State, 101 Tex. Cr. R. 86, 273 S. W. 599. Also, see Branch’s Ann. P. C. § 86, citing Craig v. State, 30 Tex. App. 621, 18 S. W. 297.

In bill No. 2 complaint is made to the action of the district attorney in asking the appellant’s character witnesses Miller and Smulzer, on cross-examination, if they did not know that the appellant had been indicted for a felony prior to the date of the alleged offense for which he was then on trial. The court sustained appellant’s objections to these questions, and, so far as the record shows, neither witness made any answer-thereto. This bill, as presented; shows no error.

In bill No. 3 complaint is made to the refusal of the court to permit appellant to prove by his wife that she heard a conversation between appellant and her brother, All-red, 'in which the latter asked her husband to help him rent a farm, and that her husband later rented for her brother the place where the still was found, but that he was acting solely as an agent and had no interest in said farm and no control over it. This bill presents no error.

Bill No. 4 complains of the action of the court in permitting the state to introducá in evidence the testimony of the officers/ relative to finding the still and equipment, ih being contended that the affidavit for search warrant was insufficient to authorize the) search of the barn or shed where the still) was found, and only authorized a search ofl the house where the bed and stove were) found. The affidavit discloses that the af-i fiant stated as follows:

“There is concealed at the following described place, to wit, in story and a half house and on the premises thereof located across the road from the house and premises occupied by Gale Lorranee about one mile from the paved road between Wichita Falls and Iowa Park, * * * which said place is supposed to be in charge of one person or persons (whose correct name is to affiant unknown) the following described property, to wit, intoxicating beverages in quantities and for purposes prohibited by law, and still, worms, utensils, and materials used in the manufacture and making of intoxicating beverages.”

We think this affidavit not only sought a warrant to search the house described, but also the premises, and was sufficient to authorize the introduction of the testimony complained of. The court therefore committed no error in admitting said testimony.

Finding no error in the record, the judgment of the trial court is affirmed.

PER CURIAM. 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. 
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
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