
    HENDERSON v. STATE.
    (No. 9745.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.
    Rehearing Denied March 24, 1926.)
    1. Criminal law <®=42 — Agreement of county attorney to dismiss prosecution in consideration of information concerning other violations held unenforceable.
    Agreement of county attorney in office,' when indictment was returned, to dismiss pros.-i ecution in consideration of information, concerning violations not in anywise connected with offense charged held not enforceable, especially in absence of showing that agreement was ratified by court.
    2. Criminal law <§=>763, 764(6) — Instruction that proof that liquor was found on premises of accused is insufficient to justify conviction, for possession held properly refused as being on weight of testimony.
    In prosecution for possession of intoxicating liquor, instruction that proof of finding of liquor on premises of accused was not sufficient to justify conviction, and no presumption of guilt arose therefrom, held properly refused as being on weight of testimony.
    3. Criminal law ©=>394 — That search of premises was without warrant held hot objectionable in prosecution prior to June 18, 1925, when present law became effective.
    That no warrant was issued for search of premises on which liquor was found held not objectionable in prosecution- prior to June 18, 1925, when present search and seizure law became effective.
    
      On Motion for Rehearing.
    4. Criminal law <@=>419, 420(100—Testimony ■ that near neighbor of one accused of possessing liquor told witness that (the neighbor) had liquor at' 'his' house held properly excluded. ■
    In prosecution for 'possessing intoxicating liquor which was found on premises of accused near the. chicken house, testimony that near neighbor of accused had told witness .that he (the neighbor.) had whisky at his house JieU properly excluded as hearsay, in absence of any showing. or reasonable inference that his statement covered liquor in' question.
    ' Commissioners’ Decision. .
    ' Appeal- from District Court, Harrison County; P. O. Beard, Judge.
    Will Henderson was convicted, of possession of intoxicating liquor, and he appeals.
    Affirmed.
    F; M." Scott, of Marshall, 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 possession of intoxicating liquor, and the punishment is confinement in the penitentiary for one year.

The appellant filed a plea in the lower court, .asking that .the prosecution be abated. The substance of this'plea was that tÜe county attorney who. was. in-office when the indictment'was. returned had agreed with the appellant that he would dismiss this prosecution in consideration of .appellant giving the officers of Harrison county information concerning other violations of the law. We think this was not such a contract as-is enforceable. -The- record clearly shows that appellant -promised; nothing, aud did nothing, that he was not under obligation as a law-abiding" citizen'to do in'any event. The record- discloses that he merely promised to give information in"-his possession about violations of the law which were not in anywise connected with the offense with -which he was under indictment, Again the record fails to show that any agreement that was made between'him and the county attorney was ratified by the court. Camron v. State, 22 S. W. 682, 32 Ter. Cr. R. 180, 40 .Am. St. Rep. 763.

Complaint is made at the court’s action in refusing to permit the appellant to prove by the witness .Hatley and the witness Jackson that Bob Hawkins told them that he had some whisky at his house. Appellant contends that, as the witness Hawkins lived very close to the appellant, and as the liquor in question was found on premises of the appellant, but very near the premises of Hawkins, this testimony was admissible as a circumstance to show that Hawkins, and not the appellant, possessed the whisky. This contention is' without merit. This testimony was hearsay and immaterial. If Hawkins had whisky at his house, we fail to see how this in any manner showed, or tended to show, that appellant did not possess the whisky found on the premises under his control.

The evidence in the case is amply sufficient to support the judgment, and we think it clear that the court did not err in refusing to give appellant’s special instruction No. 2 tq the effect that proof , alone of the fact that the liquor in question was found by the officers on premises belonging to and occupied by the defendant is not sufficient to justify a conviction of the defendant, and no presumption of guilt arises from this fact. This charge was on the weight of the testimony, and was properly refused.

The appellant raises here for the first time -the proposition that, as no search warrant was issued for the search of the appellant’s premises in this case, the ease should therefore be reversed, as the record discloses that his premises were searched and the liquor found thereon. This ease was' tried on the 26th day of May, 1925, and the present search and seizure law did not become effective until June 18, 1925. This complaint is without merit. Bailey Harrison v. State (Tex. Cr. App.) 278. S. W. 430, decided December 23, 1925.

;' Finding no error in the record, the judgment‘is in all things affirmed.

On Motion for Rehearing,

Appellant earnestly contends thát we were in error in holding that the proffered' testimony of the witnesses Hatley ánd Jackson to the effect that Bob Hawkins told them he had some whisky^'at his home- was properly excluded. We aré fully aware of the rule announced in the ease of Dubose v. State, 10 Tex. App. 230, and followed in many-.case's since that time, and as late as the case of Beckham v. State (Tex. Cr. App.) 276 S. W. 241, the principle "discussed in- the Dubose' Case was considered by this court. We have no disposition to vary’ from or criticize the rule announced in the Dubose Case, supra,, and other cases following it. Our holding in this case is that the facts do not bring it within the rule laid down in the Dubose Case. The bill of exceptions complaining at the exclusion of the testimony in this case simply shows that Hawkins lived next door to the appellant. The bill further shows that Hawkins told the witnesses that he had some vsjhisky at his house, and that he did not say where the whisky was in his house, but just said that it was over at his house.

The, state’s testimony in this case, shows that the liquor found on appellant’s premises amounted to -three gallons. The officer testified-that, he found one two-gallon jug sitting in- the corner by a chicken house with an ice cream freezer container turned over it, and that another gallon was in a jug that was found in a hole with a piece of tin over it. The last gallon was in a little lot back of the appellant’s house. ' We think that, before the testimony offered could have been admissible under the rule announced in the Iiubose Case, supra, it would have been necessary for the witness Hawkins to have stated that he possessed the whisky that was found, or to have made statements that would have carried with it at least a reasonable inference to this effect. We think his statement to. the witnesses Hatley and Jackson did neither.

The bill of exceptions is silent as ,to the distance even from Hawkins’ house to the appellant’s. The only thing it shows is that they lived next door to each other. Uhder this state of the record Hawkins might have had any amotint of whisky at his house, and yet this circumstance would in nowise avail the appellant as showing that he did not have the whisky found on his premises. We cannot lead ourselves to the conclusion that, under any theory of the rulé announced in the Dubose Case, supra, and others, the’apr pellant was entitled to make the proof offered. On the contrary, we think it was clearly immaterial.

The rule is clearly deducible from Judge Hurt’s opinion in the Dubose Case, supra, that, if the facts show that more than one person participated in an unlawful venture, the evidence would possess no tendency to weaken the case as made by the state, and should therefore be rejected. In order to make testimony of this character admissible, it is not sufficient' for it to merely show that some other party may have been guilty of a similar crime. It must go further and show, or tend to show, the innocence of the party on trial. This testimony has no such tendency. and could have had none under the facts in this case.

Believing that the case was correctly disposed of in the original opinion, the motion for rehearing is in all things overruled.

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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