
    GREEN v. STATE.
    (No. 6943.)
    (Court of Criminal Appeals of Texas.
    May 3, 1922.
    Rehearing Denied June 14, 1922.)
    Criminal law <^395 — Intoxicating liquors 247 — Whisky taken from defendant’s kitchen while being made was properly seized and produced as evidence.
    Whisky taken by a sheriff from defendant’s kitchen during its manufacture, after unresist-ed entry through an open door, was legally obtained, defendant being then engaged in the commission of a felony, and such whisky was properly produced as evidence in a trial for manufacturing intoxicating liquor.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Matt Green was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed,
    Wynne & Wynne, of Kaufman, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of manufacturing intoxicating liquor, and his punishment fixed at confinement in the penitentiary for a period of one year.

There is but one bill of exceptions in the record, and it is quite lengthy. In substance it sets out that, before the announcement of ready on the part of either party, and prior to the call of the case for trial, appellant had asked for an injunction to restrain the county attorney and sheriff from using testimony illegally obtained upon this trial, and that said injunction had been refused. Said bill of exceptions further reflects the fact that appellant had filed a motion to require the county attorney of Kaufman county and the sheriff of said county to refrain from using and giving testimony obtained by an illegal. search, of appellant’s home and seizure of defendant’s property and asking that the state be required to return to appellant certain property claimed to have been illegally taken from appellant’s possession and premises, and that the sheriff be not allowed to testify regarding what he found in possession of appellant on the occasion of such alleged illegal search. It appears that the sheriff went to appellant’s premises armed with a search warrant, but an examination of the testimony, as set out in said bill of exceptions, wholly . and entirely fails to disclose that there was any objection made on the part of appellant to the sheriff’s entry into his .house, or that recourse was had by the sheriff to any authority conferred upon him by means of said search warrant in the premises. The „ sheriff testified that, about the 1st day of September, 1921, he went out to where appellant lived, and that appellant was sitting on the front porch, and that he went in and told appellant that he wanted to look around, and that the appellant said nothing until the sheriff started into the house, and that appellant then said: “I don’t know what you want to look around for.” About this time the sheriff said his deputy, who had walked around to the back of the house, called and said: “Come here, here are the articles,” and he walked around to the kitchen and found a drum setting on a charcoal burner and whisky running off on the floor; that the vessel had been taken out from under it; that it was a nice little stream; and he said to appellant: “It won’t do to lose it; put the pan back under it.” The sheriff further testified that they disconnected the thing and set it off the fire, and took the worm loose; that appellant himself set the boiler off the furnace and carried it out in the yard. The officer further said he found some whisky there at appellant’s house, his recollection being that he found four quarts; that it was corn whisky and was intoxicating; that he brought it to town and placed part of it in a bottle and gave it to the county attorney.

We are unable to perceive any error in any of the matters shown in the above bill of exceptions. There does not appear to have been any breaking or entry against the will or wish or consent of the appellant or anybody representing him. As far as we are informed by the bill of exceptions, the entrance by the sheriff into the kitchen or other premises of the appellant was through an opened door and without any objection on the part of the appellant whatsoever. There is no question from the record but that, at the time, appellant was engaged in the commission of a felony. There is not a suggestion in the record that the house or premises of appellant was subjected to any unreasonable search or seizure on the part of the officers., It being shown that appellant was then engaged in the commission of a felony, to wit, the unlawful manufacture of intoxicating liquor, it was perfectly proper for the officer to take into his possession the intoxicating liquor so manufactured by the 'appellant, and to produce it upon the trial of this case as evidence, and no error was shown by the refusal of the trial court to return to appellant said intoxicating liquor.

Finding no error in the record, the judgment of the trial court will be affirmed. 
      
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