Coleman County Country Club v. State, 2850

• Decision Date: 26 January 1951
• Docket Number: No. 2850,2850
• Citation: Coleman County Country Club v. State, 236 S.W.2d 558 (Tex. Ct. App. 1951)
• Parties: COLEMAN COUNTY COUNTRY CLUB, Inc. v. STATE.
• Court: Texas Civil Court of Appeals

Page 558

236 S.W.2d 558

COLEMAN COUNTY COUNTRY CLUB, Inc. v. STATE.

No. 2850.

Court of Civil Appeals of Texas, Eastland.

Jan. 26, 1951.

Rehearing Denied Feb. 16, 1951.

Davis Scarborough, Abilene, for appellant.

Billy Allcorn, Dist. Atty., Brownwood, for appellee.

GRISSOM, Chief Justice.

Coleman County Country Club has appealed from a judgment ordering its slot machines destroyed. Appellant's points are that (1) the search warrant under which the machines were seized was invalid and, therefore, the sheriff was not authorized to seize them, and (2) that the machines should not be destroyed because they are not gaming devices. Under point one it is appellant's contention that the search warrant was invalid and, therefore, the sheriff was not authorized to seize the slot machines, because the person accused of having charge of the place to be searched was neither named nor described in the affidavit for the search warrant and the affiants, in fact, contrary to their statements in the affidavit, knew who occupied and had charge of the Club house, in that they knew who was president and caretaker of the Club.

The affidavit for the search warrant described the Club house and, with reference to the persons in charge, stated: 'and being the premises occupied by, in charge of and under the control of Party or parties whose name or names and whose description or descriptions are unknown to affiants * * *.'

The affidavit was sworn to by the sheriff and a deputy. As shown above, they swore that the Club house where the machines were seized was occupied by, in charge of and under the control of persons whose 'names and-descriptions-are unknown to affiants.' Where neither the name nor description of the person violating the law is known the affidavit is sufficient in that respect if it avers the premises to be searched are occupied and under the control of parties unknown. 38 Tex.Jur., 50, 51; Bentley v. State, 147 Tex.Cr.R. 95, 178 S.W.2d 521, 522; Naulls v. State, 115 Tex.Cr.R. 44, 27 S.W.2d 180, 181. Such is the substance and effect of this affidavit.

On cross examination the sheriff testified that it was his understanding before he searched the Club that Mr. Johnson was president of said Club and Mr. Wood was the caretaker and, further, that when he obtained the search warrant he intended to look for gambling devices and anything else unlawful. Appellant concludes, therefore, that the search warrant was invalid. The court found, relative to the foregoing, that the Club was a corporation; that the stock holders annually elected a president; that Mr. Johnson had been elected president a short time prior to issuance of the search warrant; that Mr. Wood was the caretaker and that he and his wife lived in a portion of the Club house; that at the time the affidavit was made the sheriff was acquainted with Mr. Johnson and it was his understanding that Mr. Johnson was president of the Club; that the sheriff was acquainted with Mr. Wood and knew that he and his wife lived on some part of the Club premises and knew that he was the caretaker, but that the sheriff did not know their duties and responsibilities and did not know that the Woods were the only people living on the Club property and 'from all the facts and circumstances offered in evidence, and the fact that this was a corporation, with stockholders, directors and officers, and with a caretaker living on the premises, the Court finds that H. F. Fenton, Jr., did not know, at the time of the making of such affidavit for search warrant, who was in charge or control of the Coleman Country Club, nor who the premises were occupied by, nor the description of any such party or parties.'

There is evidence to support such conclusion. However, we do not think that testimony as to the truthfulness vel non of facts stated in the affidavit for the search warrant were material or competent. In Ware v. State, 110 Tex.Cr.R. 90, 7 S.W.2d 551, 553, the court said:

'Appellant presents another proposition. He developed, on examination of one of the affiants, that, while he had sworn in the affidavit to an unequivocal existence of certain things as facts, in truth his affidavit was based upon information and rumors relative to the matter. Upon this being ascertained, appellant objected to the witness testifying to the discoveries made by virtue of the search. In other words, appellant sought upon the trial to go behind the affidavit, and, although the affidavit was sufficient upon its face to show 'probable cause' and justify the magistrate in issuing the warrant, appellant contends that, if in truth the affiants were not in possession of facts or information which amounted to 'probable cause,' evidence obtained under the search warrant should be excluded although the magistrate acted properly in issuing the warrant upon a valid affidavit. In Rozner v. State ((109) Tex.Cr.App. (127)) 3 S.W.2d 441, will be found an announcement at variance with appellant's contention, but the question was not discussed at length. From the statement found in Cornelius on Search and Seizure, § 94, pp. 295, 296, it appears that it is only where the issuing magistrate fails to draw the necessary legal conclusions from the facts stated in the affidavit that his action in issuing the warrant may be reviewed. See authorities collated under said section 94. We quote from Corpus Juris, vol. 33, p. 676:

"Where an affidavit, upon which a warrant was issued, contains positive averments of facts justifying the issuance of the warrant, its validity is not affected by proof aliunde that the facts therein positively stated were in reality stated upon information and belief.'

'The point is decided against appellant's contention in Bowen v. Commonwealth 199 Ky. 400, 251 S.W. 625, in the following language:

"Whatever criticism might be made of an affiant who states...