
    STEWART v. STATE.
    (No. 8558.)
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1925.
    Rehearing Denied Feb. 11, 1925.)
    1. Criminal law <§=>448(2) — Officer’s testimony that he went to defendant’s home to serve search warrant held not reversible error.
    Admission of officer’s testimony that he went to defendant’s home to serve search warrant, which his cross-examination revealed was made by himself, held not reversible error as presumably enhancing punishment by conveying to jury opinion that defendant was guilty of manufacturing intoxicating liquor.
    2. Criminal law <§=sl208(9) — Two-year sentence for manufacturing reformed to conform to Indeterminate sentence law.
    Judgment and sentence to two years’ imprisonment for manufacturing intoxicating liquor held erroneous as disregarding Indeterminate Sentence Law (Vernon’s Ann. Code Or. Proc. 1916, art. 865a), and reformed by changing term to not less than one nor more than two years.
    • Appeal from District Court, Johnson County; Irwin T. Ward, Judge.
    Ott Stewart was convicted of manufacturing intoxicating liquor, and appeals.
    Judgment and sentence reformed, and judgment affirmed as reformed.
    W. E. Myres, of Fort Worth, and Chrisman & Chrisman, of Cleburne, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for the manufacture of intoxicating liquor, with punishment assessed at’confinement in the penitentiary for two years.

We do not deem it necessary to set out in detail the evidence. Officers searched the house of appellant and found whisky in process of manufacture. The sufficiency of the evidence is not challenged.

Appellant offered no testimony in defense.

Only one bill of exception appears in the record. After testifying that he was personally acquainted with appellant and how long he had known him, the officer further said, “We went to the home of Ott Stewart for the purpose of serving a search warrant.” This statement was objected to upon the ground that it was getting before the jury the opinion and conclusion of the officer that appellant was engaged in the illegal manufacture of intoxicating liquor. The statement made by the officer in his examination in chief by the state was the bare statement just quo'ted; Neither the affidavit therefor nor the search warrant itself were introduced or offered in evidence. All details relative to the search warrant were drawn out by appellant on cross-examination of the officer, and revealed the fact that the affidavit for the search warrant had been made by the officer testifying. This was not elicited by the state. We have held heretofore that the introduction of a search warrant and the affidavit therefor was erroneous, and in some instances would call for a reversal of a judgment of conviction. Gurski v. State, 93 Tex. Cr. R. 612, 248 S. W. 353; Boortz v. State, 95 Tex. Cr. R. 479, 255 S. W. 434; Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169; Gaunce v. State, 97 Tex. Cr. R. 365, 261 S. W. 577. We have never gone to the extent of holding that getting before the jury the mere fact that the officers had a search warrant would bring about a reversal, The case of Taylor v. State, 54 Tex. Cr. R. 90, 111 S. W. 922, cited by appellant in support of his proposition we think not in point.

In Branch’s Crim. Laws of Texas under section 348, at page 305* are cited a number of cases supporting the proposition that:

The “ * * * reasons of a witness for his actions, where they involve an opinion as to the guilt of defendant, or amount to an expression hurtful to defendant, are not admissible.”

We have examined all of these cases, and none of them present a proposition similar to that here insisted upon. Appellant does not question but that the evidence is more than sufficient to justify a judgment of guilty, but insists that the mere mention of the fact by the officer that he went to the home of appellant to execute a search warrant conveyed to the jury the opinion of the person who made the affidavit that appellant was guilty, and that this perhaps enhanced the punishment. We think this would be carrying the doctrine of presumption of injury to an extent not authorized under the facts of the present case.

Our attention is called to the fact that the judgment and sentence is for imprisonment for the term of two years, thus disregarding the Indeterminate Sentence Law. Article 865a of our C. C. P. The judgment and sentence should have been that appellant be confined in the penitentiary for not less than one nor more than two years.

The judgment and sentence will be reformed as suggested, and as reformed the judgment is affirmed. 
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