
    HOLMES v. STATE.
    (No. 9924.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.
    Rehearing Denied April 21, 1926.)
    1. Criminal law <&wkey;829(l).
    Special charge, which is covered in so far as it is applicable to the facts in court’s main charge, is properly refused.
    On Motion for Rehearing.
    2. Criminal law <&wkey;1120(8) — Bill of exceptions, which was silent touching nature of alleged defect in form of affidavit, held not to show error.
    Bill of exceptions, showing that defendant objected to testimony ,of officers to alleged facts ascertained by them in searching automobile in his possession, because affidavit was not properly made out and not properly sworn to, and being silent touching nature of alleged defect in form of affidavit, held, not to show error.
    3. Searches and seizures <@=o3.
    Location, of signature does not necessarily vitiate affidavit forming basis for search warrant.
    4. Criminal law <&wkey;>l 120(8) — Bill of exceptions not showing more, than that objection was made to admission of testimony held not to show error.
    Bilí of exceptions, that defendant objected to receipt in evidence of testimony of sheriff showing contents of automobile in defendant’s possession, and not setting out objection, held not to show error, since it was incomplete.
    5. Criminal law i&wkey;>394 — That whisky in car taken possession of by officer with search warrant was subsequently discovered by another officer without a warrant held not to render evidence thereof inadmissible.
    "Where officer who seized car had a search warrant, and on searching car discovered part of whisky which it contained and took possession of car and remainder of whisky, though he did not know it was there, that it was subsequently discovered by another officer who did not have search warrant, held not to render evidence thereof inadmissible.
    6.Intoxicating liquors ¡&wkey;l67.
    . Defendant in possession of liquor for purpose of sale for himself or for another would be a principal offender with such other within Pen. Code 1925, art. 666.
    other cas.es see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Yan Zandt County; Joel R. Bond, Judge.
    James R. I-Iolmes was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    Jno. L. Poulter, of Fort Worth, for appellant.
    Sam D., Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is the possession of intoxicating liquor for the purpose of sale, and the punishment is tw'o years in the penitentiary.

The first bill of exceptions complains at the court’s action in permitting the constable to testify to the search of the ear which was in the possession of the appellant; his objection, as stated in the bill, is that the affidavit to the search warrant was not properly made out and not properly sworn .to. This bill of exceptions is wholly insufficient to show any error. The search warrant itself is not contained in the bill, and the bill of exceptions wholly fails to point out any matter in which the search warrant is defective.

. Bills of exceptions Nos. 2 and 3 seek to preserve appellant’s objections to the introduction of the testimony of the witness Stagner as to the search of the car, but. the bills merely state that the testimony was objected to, and that any testimony relative to what was done under said search warrant was objected to, and same do not even state the grounds of the objections made, any further than above indicated. They are wholly insufficient to show any error.

Appellant also objected to the introduction of the liquor in question; the grounds of the objection being, first, that it was seized under an iliegal search warrant, and, second, because all of the evidence that was seized was not there. No facts are stated in this bill of exceptions which would authorize this court in holding that error was committed in receiving this testimony.

The' special charge offered by1 the appellant was covered, in so far as it was applicable to the facts in 'this case, in the court’s main charge.

Finding no error in the record, the judgment is in all things 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.

On Motion for Rehearing.

MORROW, P. J.

An automobile in the possession of the appellant was searched and found to contain 350 quarts of whisky. The whisky was secreted in various parts of the car, which seem to have been specially constructed or arranged for that purpose. Appellant testified that his home was in Kansas, but that he was living in Fort Worth in September; that he was an automobile mechanic. The car at the time was on the highway in Van Zandt county. Appellant said that the car belonged to one Hill; that it was working badly; and that rather than to have a stranger work upon it, Hill came to Fort Worth and secured the services of the appellant to go and repair it. According to his testimony, appellant accompanied Hill to the car, which was parked in a -farmer’s yard. The car was not in a running condition. It was repaired by the appellant, and at Hill’s suggestion, he undertook to drive the car back. Hill and the appellant started to Fort Worth, Hill driving the car in which he and the appellant had come from Fort Worth to Van Zandt county. Hill was not present when the arrest was made. Appellant said that he did not know the car was loaded with whisky, but knew there was some in it. He had no interest in the whisky. He expected pay for driving the ear to Fort Worth. At the time of the arrest, he admitted to the officers that the ear did have'some whisky in it.

Bill No. 1 shows that the appellant objected to the testimony of the officers to the alleged facts ascertained by them in searching- the automobile “because the affidavit was not properly made out and not properly sworn to.” The bill is silent touching the nature of the alleged defect in the form of the affidavit. In explaining the bill the court said that the affidavit was signed by two witnesses and was irregular only in that their signatures appeared below the jurat of the officer before whom the oaths were made. The location of the signature does not necessarily ‘ vitiate the instrument. See Oyc. of Law & Proc. vol. 36, p. 449.

Bill No. 2 is to the effect that the appellant objected to the receipt in evidence of the testimony of the sheriff showing the contents of the automobile. The bill does not show more than that the objection was made. It fails to set out the objection, and in that particular is incomplete. See Mayo v. State, 7 Tex. App. 349, and other cases collated in Branch’s Ann. Tex. P. C. § 208. See, also, Smith v. State, 4 Tex. App. 630; Hennessy v. State, 5 S. W. 215, 23 Tex. App. 355; and other cases collated in Branch’s Ann. Tex. P. C. § 209. In one of these sections it is stated that a bill of exceptions will not ordinarily be revised if it fails to set forth the objections urged, and no objection will be considered that is not stated. Another section reads thus:

“A mere statement of a ground of objection in a bill of -exceptions is not a certificate of (he judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. The defendant should incorporate so much of the evidence in the bill as would - verify the truth of his objections.” Section 209.

The remarks just made with reference to bill No. 2 are also applicable to bill No. 3.

It seems that when the car was first seized, there were found something over 200 quarts of whisky. The sheriff took possession of the car and the whisky. The car was put in a garage. On the next day, there were found hidden in the car an additional 140 quarts of whisky. As we understand bill No. 4, it reflects an objection of the appellant to the receipt in evidence of the testimony touching the 140 quarts of whisky upon the theory that inasmuch as they were not discovered at the time and by the same officer that seized the car, it was not admissible at all. The testimony, as we understand it, does not support this view; neither does the bill. As we understand it, the officer who seized the car had a search warrant, and upon searching the car, discovered a part of the whisky which it contained. He took possession, however, of the car and the remainder of the whisky, though he did not know it was there. The fact that it was subsequently discovered by another officer who did not have a search warrant would not apparently militate against the receipt of his testimony in evidence.

Complaint is made of the refusal of a special charge to the effect that there could be no conviction unless the jury believed from the evidence that the appellant possessed the whisky for the purpose of sale. This instruction was in substance embraced in the court’s main charge.

The fifth paragraph of the charge' reads thus:

“Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant possessed one quart of intoxicating liquors, or more, at the time and place charged in the indictment, but you further believe from the evidence that the defendant was in possession of the intoxicating liquors for one A. Hill, and that said intoxicating liquor was not in possession of the defendant for the purpose of sale by the defendant or the said A. Hill, or if you have a reasonable doubt as to whether the intoxicating liquor was for the purpose of sale, then you will give the defendant the benefit of such doubt and find him not guilty.”

In the criticism of this charge, appellant urges that it is faulty in that it authorized his conviction if he possessed the liquor for sale or for Hill. We are unable to appreciate the force of this objection. Appellant was in possession of the whisky, and if it was for sale by him, or within his knowledge for sale by Hill, his conviction would be authorized. If Hill was the owner of the whis-ley, as tíie appellant claims, and if appellant was in possession of it for the purpose of sale for himself or for Hill, he would come within the purview of the statute which denounces the offense and would he a principal offender with Hill. See P. C. 1925, art. 666.

We are impressed with the view that the disposition made of .the case on the original hearing was correct.

The motion for rehearing is overruled.  