McCormick v. State
| Decision Date | 06 January 1960 |
| Docket Number | No. 31143,31143 |
| Citation | 331 S.W.2d 307,169 Tex.Crim. 53 |
| Parties | Gaynelle McCORMICK, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Brown & Shuman, Lubbock, for appellant.
William J. Gillespie, County Atty., J. Q. Warnick, Jr., Asst. County Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is possession of whisky and vodka in a dry area for the purpose of sale; the punishment, a fine of $500.
A search of a night club, known as the Cotton Club, resulted in the finding of seven four-fifth bottles of whisky and vodka behind the concession stand. Three bottles were sitting under the counter close to the cash register and three were under a table against the counter. A partially filled fifth was found in the store room. All of the bottles had been opened.
Appellant, upon whom the search warrant was served, was pointed out by the ticket taker as the person in charge of the club. She was asked if she was the manager of the place, and she said she had it leased.
[169 TEXCRIM 54] It was stipulated that Lubbock County was a dry area.
It is contended that the search under the warrant was unlawful because there was an insufficient description of the premises to be searched.
The search warrant authorized the search of the 'Cotton Club'; and described it as being in Lubbock County, and stated that it was located on the Slaton Highway No. 84 in the City of Lubbock, 'and to include all automobiles, outbuildings and appurtenances thereto.'
The place searched was the 'Cotton Club' which, according to a map of the City of Lubbock, was located upon 'Southeast Drive' which was also indicated upon the map as 'Alt 84.'
The evidence heard by the court in the jury's absence showed that this branch of U. S. Highway 84 goes from 34th Street toward Slaton, and another branch of said highway goes from the traffic circle and cuts across toward Slaton, but there was no such highway in Lubbock County as 'Slaton Highway No. 84.'
Other evidence before the court was that the Cotton Club was located on the old highway 84 which leads to Slaton and not on designated U. S. Highway 84, and that there was no other 'Cotton Club' in Lubbock County. There was also testimony that 'Alt 84' meant alternate Highway 84.
That the premises searched and the place described in the warrant are the same is apparent. There was but one 'Cotton Club' in Lubbock County. It was located on a highway leading to Slaton which was an alternate, but not the presently designated U. S. Highway 84.
The description as to location of the Cotton Club being on 'Slaton Highway #84' was not precisely or technically accurate. It need not be. All that is required is that there be sufficient definiteness to enable the officer to locate the property and distinguish it from other places in the community. Rhodes v. State, 134 Tex.Cr.R. 553, 116 S.W.2d 395.
The trial judge did not err in admitting in evidence the whisky found behind the concession stand in the Cotton Club.
The remaining ground for reversal is the failure of the trial judge to charge on circumstantial evidence. We overrule the contention that under the evidence stated such a charge was called for.
The judgment is affirmed.
This conviction stands or falls upon the sufficiency of the search warrant by virtue of which the premises alleged to have been operated by and alleged to be in the possession of appellant were searched and intoxicating liquor found as a result thereof.
The place to be searched was described in the search warrant as 'A certain place in Lubbock County, Texas, described as (a) Night Club known as the Cotton Club located on the Slaton Highway #84 in the city of Lubbock, Lubbock County, Texas * * *.'
The validity of the search warrant is attacked because no such place as that described in the warrant was shown to exist, and the 'place' searched was not that described therein but was situated at another and different location.
Mills, senior engineering assistant with the Highway Department who had control of the maps showing the highway system within Lubbock County, Texas, testified that there was no highway in this state officially designated 'Slaton Highway No. 84' but that there was a U. S. highway in the city of Lubbock which was designated 'U. S. Highway 84.'
The witness was asked:
'Is the Cotton Club located on any part of U. S. Highway 84 within the city of Lubbock * * *?'
The witness replied:
'No, sir, it is not located on U. S....
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...DePugh, 452 F.2d 915, 920 (10th Cir.1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805 (1972); McCormick v. State, 169 Tex.Crim. 53, 54, 331 S.W.2d 307, 308 (1960); United States v. Goodman, 312 F.Supp. 556, 558 (N.D.Ind.1970); People v. Watson, 26 Ill.2d 203, 205-06, 186 N.E.......
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