
    BROYLES v. STATE.
    (No. 11191.)
    Court of Criminal Appeals of Texas.
    May 23, 1928.
    Rehearing Denied June 20, 1928.
    1. Witnesses @=337(6) — Asking accused while witness if he had been convicted in federal court for possessing equipment and ingredients for manufacturing liquor held proper.
    In prosecution for transporting liquor, it was permissible to ask' accused while a witness if he had not been convicted in federal court and fined for possession of equipment and ingredients for manufacturing liquors.
    2. Criminal law @=364(4) — Accused’s statement contemporaneous with arrest was res gest» of offense of transporting liquor, and was admissible, though he was under arrest.
    Statement made by accused contemporaneous with his arrest was but a res gestee of offense of transporting liquor, and was admissible, even though he was under arrest at time.
    3. Criminal law @=l 169(3) — Defendant cannot complain of admission of evidence regarding finding whisky in automobile, where he testified he was transporting liquor for medicinal purposes.
    Defendant cannot complain regarding admission of testimony as to finding of whisky in his automobile, objected to on ground that affidavit was insufficient and proceedings thereunder void, where he took stand and testified that he was transporting .quantity óf whisky found by officers, but was transporting same for medicinal purposes.
    On Motion for Rehearing.
    4. Criminal law @=419, 423(12) — Where objection is urged to evidence obtained as result of search under search warrant on ground warrant was defective, hearsay statements in affidavit and warrant should not go to jury.
    Where objection is urged to evidence obtained as result of search made by virtue of search warrant, on ground that warrant is insufficient, or that recitals in affidavit do not show probable cause, or that it is otherwise defective, question is one of law for court to determine from his examination of instruments in question, and hearsay statements in affidavit and warrant should not go to jury.
    5. Criminal law @=409 — Defendant’s admission that he was transporting liquor brought him within prima facie case made by statute (Pen. Code, art. 671). ,
    Defendant’s admission in his testimony that he was transporting whisky brought him within prima facie case made by Pen. Code, art. 671, relating to prima facie evidence of guilt.
    6.Criminal (aw @=1169(3) — Admitting, without objection, search warrant and affidavit in liquor prosecution, where defendant claimed warrant was insufficient, held harmless error.
    In prosecution for transporting liquor,.permitting search warrant and affidavit, introduced to show that evidence against defendant had been legally obtained, and as justification for search, to go to jury, without objection on ground that recitals therein were hearsay, lielS harmless error, where defendant admitted he was transporting liquor, but claimed he was transporting it for medicinal purposes.
    Appeal from District Court, Eastland County ; Elzo Been, Judge.
    Marshall Broyles was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    V. L. Shurtleff, of Breekenridge, and Chas-tain & Judkins, of Eastland, for appellant.
    A. A. Dawson,. State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, three years in the penitentiary.

In appellant’s brief, he urges that the affidavit for search warrant, as well as the warrant itself, were erroneously introduced in evidence. Twenty-six bills of exception were reserved, ten of which appear in this transcript. From same it is clear that appellant was objecting to the use of testimony as to what the officers found in appellant’s car, upon search thereof, under a warrant issued upon the affidavit referred to. Prom bills' of exception Nos. 7 and 8 we learn that the affidavit and the warrant issued on same were introduced “for the purpose of showing that the evidence against the defendant had been legally obtained,” and “as justification for the search which the officers máde of the defendant’s automobile which resulted in the discovery of 22 half gallon jars of whisky, which the state offered in evidence against the defendant.” This presents a very different state of facts from what appears in Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169, and Gaunce v. State, 97 Tex. Cr. R. 365, 261 S. W. 577, which are cited by appellant in his brief. In the Bryant Case we held the introduction of the affidavit for search warrant erroneous, saying in the opinion: “There is no issue discerned by us upon which the search warrant or the affidavit was relevant.” So, also, in the opinion in the Gaunce Case, supra, we said: “We perceive from the record no issue upon which the contents of the search warrant were relevant.” When evidence of the- result of. a search by officers is objected to, as appears from bill of exceptions No. 25 herein, on the ground that the affidavit and the warrant were insufficient in law and were null and void, the validity of said documents ■becomes an issue, and such affidavit and warrant of necessity are material to the determination of such issue. Such issue ■ordinarily is for the court and not the jury. Chorn v. State, 107 Tex. Cr. R. 521, 298 S. W. 290; Henderson v. State (Tex. Cr. App.) 1 S.W.(2d) 300; Skiles v. State (Tex. Cr. App.) 2 S.W.(2d) 436.

The record before us suggests no improper use of such documents in argument or otherwise, and same seem to have been introduced only for the purpose of making it appear to the trial court primarily, and to this court on appeal, that the search was or was not .justifiable and the matters found, admissible. In Gurski v. State, 93 Tex. Cr. R. 614, 248 S. W. 353, notwithstanding we' said there appears nothing in the record which made .said evidence admissible (the use of the word “inadmissible” in said opinion is a misprint), yet introduction of the affidavit was held harmless; the case being fully made out by other testimony than that of the affidavit. .It might not be amiss to further note that no objections were made in this case to the introduction of either the warrant or the affidavit on the ground that same was hearsay.

Objection was also made to testimony elicited from appellant while a witness that he had been convicted in the federal court in 1920, and fined for possession of equipment and ingredients for the manufacture of. alcoholic liquors. Erom the bill presenting this complaint, it appears that the court told the jury not to consider this testimony, but, unless something was before the court which does not here appear, this instruction was an error in favor of the accused. The possession of such equipment may be punishable under the federal statute by imprisonment for' two years ; and an offense with an alternative punishment of confinement in the penitentiary is, under our statutes, a felony, and it was permissible to ask appellant while a witness if he had not been so convicted.

The court below fully charged on the defense interposed, viz., that appellant was transporting the liquor in question for medicinal purposes, and we regard the charge as one most favorable to appellant, and find nothing- in bills of exception Nos. 21, 22, and 23 relating to the refusal of special charges and the exceptions taken to the main charge.

The statement made by appellant contemporaneous with his arrest was but res gestae of the offense of the transportation of Intoxicating liquor, and the fact that he was under arrest in no wise militated against thé reception in evidence of what he said. Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613; Plunk v. State, 101 Tex. Cr. R. 9, 274 S. W. 156.

' Objedtion to testimony as to the finding of the whisky in appellant’s car, objected tP on the ground that the affidavit was insufficient and the proceedings thereunder void, becomes unavailing,, in view of the fact that appellant himself took the stand and testified' that he was transporting the quantity of whisky found by the officers, but was so transporting same for medicinal purposes. McLaughlin v State, 4 S.W.(2d) 54, No. 11286, opinion February 15,1928.

We are unable to appraise the complaint of the argument set out in bill of exceptions No. 26, because the bill is devoid of any statement of facts supporting the objections made or manifesting that such argument had any support in the testimony.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant renews complaint at the admission in evidehce of the search warrant and the affidavit upon which it was predicated. Neither of these documents should have gone to the jury. If objection had been urged that the recitals in the, affidavit and warrant were hearsay, doubtless the learned trial judge would not have admitted them. Where search upon '“probable cause” may legally he made in the absence of a search warrant — as of an automobile — it has been held that, if it become an issue whether the facts existed which are claimed to constitute “probable cause,” the evidence upon such issue should go to the jury, and the issue be submitted for their determination, but, if there be no issue as to the existence of such facts, the question of “probable cause” issue of law to be determined by the trial judge. McPherson v. State (Tex. Cr. App.) 300 S. W. 936. When objection is urged to evidence obtained as a result of a search made by virtue of a search warrant upon the ground that the warrant is insufficient, or that the recitals in the affidavit do not show “probable cause,” or that it is otherwise defective, the question is one of law for the court to determine from his examination of the-instruments in question, and the hearsay statements in the affidavit and warrant should not go to the jury. Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169; Gaunce v. State, 97 Tex. Cr. R. 365, 261 S. W. 577; Skiles v. State (Tex. Cr. App.) 2 S.W.(2d) 436. It does not follow, however, that in every case where the affidavit and warrant are permitted to go to the jury that a reversal should result. In the present case appellant admitted in his testimony that he was transporting 22 half gallon jars of whisky. Such admission brought him within the prima facie case made by the statute. Article 671, P. C. The jury rejected his explanation .that he was transporting the liquor for medicinal purposes. Even if the affidavit and warrant had been admitted over proper objection that the re-citáis therein were "hearsay,” we would hesitate before ordering a reversal under the circumstances presented in the present record.

The motion for rehearing is overruled. 
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