
    REYNOSA v. STATE.
    (No. 9258.)
    (Court of Criminal Appeals of Texas.
    May 20, 1925.)
    1. Criminal law <©=3394 — Evidence of officers seizing intoxicating liquors without warrant held admissible.
    In a prosecution for unlawfully possessing intoxicating liquors for purpose of sale, evidence by the officers making the seizure as to what they saw, heard, and found in the house where the defendant was arrested properly admitted, notwithstanding that entry and seizure was made without warrant.
    2. Criminal law <&wkey;368(I) — Evidence .of possession held admissible.
    Where, in a prosecution for unlawfully possessing intoxicating liquor for purpose of sale, witness stated he saw a woman make an apparent sale in room where defendant was arrested, held that such evidence was admissible as res gestee, as it further appeared that the woman owned the house and defendant was her tenant.
    3. Criminal law &wkey;>394 — Failure to give receipt for liquor seized held immaterial.
    In prosecution for unlawfully possessing intoxicating liquor for purpose of sale, that no receipt was given defendant for liquor seized was immaterial.
    4. Criminal law <&wkey;829(4) — Special charge not necessary, where covered in general one.
    In a prosecution for unlawfully possessing intoxicating liquor for purpose of sale, trial justice properly refused special charge that “it must be proved by proper evidence that the intoxicating liquor held in possession was for purpose of sale, and if otherwise possessed you will acquit him” (defendant), where general charge covered" such direction.
    5. Criminal law <&wkey;8ll(4) — Requested charge held properly refused as magnifying issues.
    In a prosecution for unlawfully possessing intoxicating liquor for purpose of sale, a special charge that “it must be proved by proper evidence that the intoxicating liquor held in possession was for purpose of sale, and if otherwise possessed you will acquit him!’ (defendant), was properly refused as magnifying particular issue.
    €. Intoxicating liquors <&wkey;!5 — Statute making possession of specified’ quantity prima facia evidence of guilt constitutional.
    The statute making possession of more than one quart of intoxicating liquor prima facie evidence of guilt of possession for purpose of sale held constitutional.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Jose Reynosa was convicted for unlawfully possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    Upper & Insirilo, of Houston, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAUER, J.

The appellant was charged and convicted in the district court of Harris county for unlawfully possessing intoxicating liquor for the purpose of sale, and his punishment assessed at one year’s confinement in the penitentiary.

The testimony of the state is to the effect that a Mexican was seen coming out of the room where appellant was arrested with a pint of whisky, and when the room was entered appellant was seen making a sale of a drink of whisky to one A. C. McDaniel and receiving the money therefor, and upon search of the room a half gallon jar of whis-ky was found, and also three pints of whisky were -found in said room, which the appellant claimed' at said time to be his. The appellant, as a witness in his own behalf, denied receiving the money from the said McDaniel, but admitted that he gave him a drink of whisky, and claimed that the whis-ky found by the officers belonged to another Mexican who had given him permission to treat his friends therewith. This, in brief, was the testimony introduced upon the trial of this case.

Bill of exceptions No. 1 complains of the action of the trial court in refusing to continue the case for him on account of the alleged physical inability of his attorney to represent him. This bill, as explained by the court, shows that said attorney was present and participated in the entire trial of the case. Uuder these circumstances, there could be no error committed in this particular.

The appellant complains in his bills of exception to the action of the court in permitting the officers to testify relative to what they saw, heard, and found in the house where the appellant was arrested, because of the alleged unlawful entry and seizure, and in effect because said officers did not have a search warrant. The attorney for the appellant in his brief admits that the law of this state is against his contention, but in effect seeks to have this court make an exception in his case. We fail to see anything in this case which would require the court to overrule the decisions heretofore rendered, establishing a contrary doctrine in this particular. Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524; Harris v. State, 93 Tex. Cr. R. 349, 248 S. W. 54.

Complaint is made to the action of the court in permitting the state’s witness Ditto to testify to having seen a Mexican receive a paper sack from a woman, which proved to contain a pint of whisky, and to having seen said Mexican hand the woman something when he received said paper sack just as he was leaving the room where appellant was arrested, because same were hearsay . acts and declarations. We are unable to agree with'this contention, as the testimony developed that this woman owned the house and the appellant had rented the room he was then occupying from her where the whisky was found, and because we think that said transaction was a part of the res gestee and was admissible.

There is further complaint made in this case in bill of exception No. 4, because the officers, when they seized the whisky, did not give the appellant a receipt for same. The bill does not show or attempt to show, and we cannot see, in what manner this would affect the issues upon the trial of this case. Austin v. State, 97 Tex. Cr. R. 360, 261 S. W. 1035.

Complaint is made at the refusal of the court to give to the jury the defendant’s special charge to the effect that in order to comvict the defendant:

“It must be proved by proper evidence that the intoxicating liquor held in possession was for the purpose of sale, and if otherwise possessed, you will acquit him.”

The court in his general charge covered this phase of the case which avoided the necessity of charging again as requested, and, in fact, it would have been improper to have given the special charge upder the circumstances, and it would have magnified this issue before the jury to have done so.

The defendant complains of the action of the court, because the court charged the law relative to having more than a quart of intoxicating liquor in -one’s possession, as set out in the statute, because it is contended that said act of the Legislature in making possession of more than a quart of whisky prima facie evidence of guilt was unconstitutional. This court in many decisions has overruled this contention made by the appellant. Newton v. State, 267 S. W. 272; Stoneham v. State, 268 S. W. 156.

We have carefully examined'all the assignments of error set out by the appellant in his brief, and are of the opinion that the record shows that he has received a fair and impartial trial, and the judgment of the trial court should be affirmed, and it is accordingly so ordered.

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. 
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