Bickerstaff v. State

• Decision Date: 06 March 1940
• Docket Number: No. 20887.,20887.
• Citation: 139 S.W.2d 110
• Parties: BICKERSTAFF v. STATE.
• Court: Texas Court of Criminal Appeals

139 S.W.2d 110

BICKERSTAFF v. STATE.

No. 20887.

Court of Criminal Appeals of Texas.

March 6, 1940.

Rehearing Granted April 17, 1940.

Appeal from Cherokee County Court; J. W. Chandler, Jr., Judge.

Lee Bickerstaff was convicted of violating the local option laws, and he appeals.

Reversed and remanded.

M. M. Guinn, of Rusk, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Appellant was convicted on the 8th day of June, 1939, in the County Court of Cherokee County upon a charge of violating the local option laws, Vernon's Ann.P.C. 666—1 et seq. The prosecution was by complaint and information, and the trial was by a jury which returned its verdict finding the appellant guilty and assessing a fine of $500.

Leon Halbert, a deputy sheriff, testified that he knew the appellant and that he operated the place known as Paradise Inn, which included a dance hall, sleeping quarters, and tourist quarters; that he, in company with the sheriff and another, armed with a search warrant, went to the place mentioned, and upon searching the premises, found sixteen pints of whisky concealed in the ceiling above the light fixtures in the sleeping quarters of the defendant and his wife. It was stated that two employees also had sleeping quarters at the Paradise Inn, but it is not stated just how close they were to this room or that they had access to it. A representative of the Liquor Control Board testified as a chemist that he examined the contents of the bottles; that it was whisky or distilled spirits with an alcoholic content of more than forty per cent by volume and that it was intoxicating liquor.

J. H. Parrish testified for the appellant that he was present on the night the place was visited by the officers; that he saw about thirty or forty persons there. Two persons besides the appellant worked at the Paradise Inn, one of them being his sister-in-law. He did not see any pint bottles; that all he saw were half pints which the officers had in a bushel basket. He did not know which room was occupied by the appellant at this time.

Another representative of the Liquor Control Board stated that he was able to take the affidavit for the search warrant and locate the house that was searched and in which the appellant lived.

Bill of Exception No. 1 contains a motion to quash the complaint and information in the case on several counts, neither of which we consider tenable. Section 9 thereof sets out that the complaint and information did not allege any publication of the order of the commissioners' court as required by law. As we read it, such allegation is made. The form of the complaint and information in this case have been so frequently approved by the court that we consider further discussion of them unnecessary.

Bill of Exception No. 2 bases error on the fact that the "complaint" in the case was not read to the jury. The prosecution is based upon information, which the statute requires to be read to the jury. Article 642, C.C.P. We know of no requirement that the complaint itself be read to the jury.

Bills of Exception Nos. 3, 4 and 6 pertain to the record as to the Local Option Law in Cherokee County. This has been thoroughly considered in another case of this date, and the court concluded that there is no merit in the bills.

Bill of Exception No. 7 complains of the form of the affidavit for the search warrant in the case with the contention that it is insufficient in that it does not properly describe the premises to be searched. The facts stated in this bill are not borne out by the record as to the description of the property. The affidavit states that the property is situated near Highway No. 40 north of the town of Rusk, and according to the evidence in the case, this seems to be correct. The further complaint is made that the affidavit is insufficient in that it does not give the source of the information upon which the affidavit was made; that it alleges only a suspicion or a belief, and is too indefinite and uncertain upon which to authorize the issuance of the search warrant. This bill presents the most difficult question on the appeal. The affidavit alleges the place to be a private dwelling in Cherokee County, described as a dance hall, with a drink stand and eating place combined, etc., and being commonly known as "Paradise Inn", and "being the premises of Lee Bickerstaff, as a place where alcoholic beverages are unlawfully possessed, sold, manufactured, kept and stored in violation of the provisions of the Texas Liquor Control Act [Vernon's Ann.P.C. art. 666—1 et seq.]. Further it says: "We have recently been informed by credible persons that intoxicating liquors are kept, possessed, and sold in and upon the above described premises in violation of the law and your affiants believe that said information to be true and correct."

It will be noted that the first assertion made is direct and positive that the house is a place where alcoholic beverages are unlawfully possessed, sold, manufactured, kept, and stored in violation of the provisions of the Texas Liquor Control Act. The affidavit concludes with the statement that "we have recently been informed by credible persons that intoxicating liquors are kept, possessed, and stored in and upon said premises."

Appellant has filed a very able brief on this question exhaustively treating the subject. With the abstract propositions of law asserted we are in full accord. However, the application to the facts of the instant case appear to us to be in error.

The affidavit for a search warrant is the basis for its issuance by the magistrate. If it alleges sufficient facts to convince the magistrate that the party applying for the search warrant is entitled to it, it is his duty to issue the warrant. He is the judge of the sufficiency of the facts alleged. Whether or not there are any facts upon which he may reach this conclusion is a question of law reviewable on this appeal. The subject has been many times considered by this court—so many times that an effort to review all of the decisions on the subject would hardly be justifiable; nor do we deem it essential to a proper determination of the question raised.

Appellant seems to have the view that the decisions of this court hold that the maker of the affidavit must justify the statements which he makes that the evidence shows the existence of the article to be obtained by the search by giving the source of his information. The courts have not gone that far. This court has said that the affidavit must allege more than mere hearsay, and the cases treated in the appellant's brief, all of which we have considered, reach that conclusion. It has been said that the affidavit must state the existence of a fact upon good authority and this, we think, the affidavit does. It has frequently been held, however, that it is not essential to present the evidence which the affiant has, warranting him in reaching the conclusion asserted. A careful consideration of all the authorities cited by the appellant fail to reveal a contrary conclusion.

In Simmons v. State, 110 Tex.Cr.R. 4, 7 S.W.2d 78, 79, it was said: "The affidavit for the search warrant was made on information and belief, without stating any fact, circumstance, or detailed information from which it could be determined that probable cause existed for the issuance of the warrant under which the search was made."

It was held that this was insufficient. The party making the affidavit gave no claim to the information himself. He made no direct statement but based everything on "information and belief."

To the same effect is Johnson v. State, 110 Tex.Cr.R. 403, 10 S.W.2d 549.

It will be noted that in each of the foregoing cases the entire allegation was on information and belief.

Writing on the motion for rehearing, Judge Morrow, in Hartless v. State, 121 Tex.Cr.R. 181, 50 S.W.2d 1097, laid down the doctrine that it is sufficient that a search warrant be issued upon an affidavit showing that the affiants base their affidavit upon information obtained from credible persons of specific things set out in the affidavit; that it has not been held in this state that the names of the persons from which the affiants obtained their information must be set out in the affidavit.

Schwartz v. State, 120 Tex.Cr.R. 252, 46 S.W.2d 985, sustains an affidavit made by two parties who testified to the existence of specific facts upon the information of other parties whom they knew and believed.

From the opinion of Judge Morrow in Montgomery v. State, 115 Tex.Cr.R. 469, 31 S.W.2d 440, 441, we quote the following: "The affidavit states in direct terms that Willie Montgomery was the owner and in possession of intoxicating liquor, and concludes with the statement that `affiants have been informed that said defendant has such intoxicating liquor in his car.' The ruling of the court asserting the sufficiency of the affidavit is not out of harmony with the announcement of this court in Rozner's Case [Rozner v. State], 109 Tex.Cr.R. 127, 3 S.W.(2d) 441. See, also Villareal v. State , 21 S.W.(2d) 739; Harris v. State, 112 Tex.Cr. R. 219, 15 S.W.(2d) 1048. The affidavit, however, is apparently in accord with the principle applied and the announcements made in the cases of Ware v. State, 110 Tex.Cr.R. 90, 7 S.W.(2d) 551", etc.

In Ruhmann v. State, 113 Tex.Cr.R. 527, 22 S.W.2d 1069, 1070, complaint was made that the affidavit was shown to be predicated solely on information and belief, the affiants stating that the place was visited at all hours by disorderly and boisterous persons, and by persons who are shortly afterwards apparently under the influence of intoxicating liquor. Judge Hawkins said:

"If we understand appellant's contention, it is that such averment states no fact, but gives only information which has reached the affiants, without naming the informant, and is only hearsay. Appellant seems to assume that `probable cause' for the...