Stevens v. State, 26512
| Decision Date | 09 December 1953 |
| Docket Number | No. 26512,26512 |
| Citation | 262 S.W.2d 716,159 Tex.Crim. 247 |
| Parties | STEVENS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Spence & Rexford, by James E. Rexford, Wichita Falls, for appellant.
Wesley Dice, State's Atty., of Austin, for the State.
DAVIDSON, Commissioner.
This is a conviction for robbery, with punishment assessed at five years in the penitentiary.
Harber operated, for the owner, a filling station in that part of the city of Amarillo which lies in Randall County. About one o'clock, a. m., on August 27, 1952, three masked and armed men robbed Harber, taking from the filling station the cash register, which contained about $40 in money, including $12 in nickels wrapped in six rolls of $2 each. Harber was unable to identify any of the robbers.
By virtue of a search warrant, officers searched the residence of the appellant on the second day after the robbery and found in a dresser drawer in 'the east bed room' thereof six rolls of nickels. Appellant was not at home at the time of the search.
The witnesses for the state were unable to make positive identification of those rolls of nickels as having been taken in the robbery; they did testify, however, to facts showing similarity in color and folding of the wrappings which would authorize a jury to conclude that the six rolls of nickels so found were those which were taken in the robbery.
The finding of the six rolls of nickels in appellant's residence was a fact of material importance in the establishment of the state's case.
The admissibility of that testimony was challenged by appellant, who urges that the search warrant under which officers (Initialed grounds of objection being that the affidavit for and upon which the search warrant was based was made upon information and belief and did not evidence probable cause for the issuance of the warrant.
The affidavit reads as follows:
'The State of Texas County of Randall} (Initialed at top with pen and ink): 'Mrs. W.J.F. 11-24-52'
'I, Homer Ewton, do solemnly swear that on or about the 26th day of August, A.D. 1952, in said County and State, James M. Stevens did fraudulently take from the possession of Marvin Harber, without his consent with intent to deprive him of the value thereof, and to appropriate the same to his own use, certain personal property in the care, custody and control of the said Marvin Harber, to-wit:--one cash register together with $40.00 in lawful current money contained therein, and I have cause to believe and do believe that the said property is now concealed by James M. Stevens in a certain house situated in said County and State, and described as follows:
'Residence at 4210 Gables Street, Amarillo, Randall County, Texas.
'My belief is based on the following facts:
'Evidence that James M. Stevens together with other persons committed the offense of armed robbery on the said Marvin Harber on the date stated above and by such robbery took the above described property from his possession without his consent.
'Wherefore, I asked that a warrant to search for and seize the said property be forthwith issued in accordance with the law in such cases provided.
'S/Homer Ewton.
'Sworn to and subscribed before me by Homer Ewton on this the 29th day of August, A.D. 1952.
Randall County, Texas.'
It may be said that the affidavit is composed of three separate divisions: (First) The affidavit contains the direct and positive statement that appellant committed the crime of theft in stealing a cash register and $40 from Harber. (Second) The affiant expresses the belief that the stolen property was concealed by appellant in a certain residence in Amarillo. Note is to be taken of the fact that it is not alleged that it was appellant's residence or that appellant was either the owner, occupant, or person in charge of said residence, nor is the name of the owner, occupant, or person in possession given or stated to be unknown. (Third) The place where the stolen property is alleged to be concealed is shown as being upon information and belief, only. No facts are stated by which the magistrate might have concluded that probable cause there existed to authorize and warrant the issuance of the search warrant.
While it is true that affiant states that the information and belief referred to are based upon evidence that Stevens and others took the property in a robbery, these facts do not constitute probable cause for belief that such property was concealed in the residence described in the affidavit. Such expression, therefore, does not constitute a statement of facts evidencing probable cause authorizing the issuance of the search warrant to search the premises named.
Our Constitution, by Art. 1, Sec. 9, Vernon's Ann.St., prohibits the issuance of a search warrant upon information and belief. See, also, Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095.
A warrant to search a private residence must be based upon an affidavit evidencing probable cause for its issuance. McLennan v. State, 109 Tex.Cr.R. 83, 3 S.W.,2d 447.
The receipt in evidence of the property found in the home of the accused as the result of illegal search requires a reversal of the conviction. Art. 727a, V.A.C.C.P.; Davis v. State, 113 Tex.Cr.R. 421, 21 S.W.2d 509.
In the light of the special charges that were given, we are unable to agree that the law requiring corroboration of accomplice testimony was not propertly given in the charge to the jury.
For the error pointed out, the judgment is reversed and the cause is remanded.
Opinion approved by the Court.
This case depends mainly upon a certain search warrant which it is claimed in the opinion did not evidence probable cause for the issuance of such warrant.
In the first place, it is the writer's contention that this search warrant was issued under Article 325, C.C.P. The opinion in this case attempts to base the fallacy in the issuance of this warrant upon the lack of probable cause not being shown therein.
Article 325, Vernon's C.C.P., reads as follows:
It may be contended that reasonable ground takes the place of probable cause in such cases as this. See Constant v. State, 155 Tex.Cr.R. 6, 229 S.W.2d 791, and cases there cited.
It will be observed that the warrant itself was for the recovery of certain personal property taken from Marvin Harber, to-wit: one cash register, together with $40 in lawful current money contained therein, and same was alleged to have been concealed at 4210 Gables Street, Amarillo, Randall County, Texas. The belief that such is there contained is based on the following facts: 'Evidence that James M. Stevens together with other persons committed the offense of armed robbery on the said Marvin Harber on the date stated above and by such robbery took the above described property from his possession without his consent.'
True, it is not shown in said affidavit therefor that probable cause existed, or what would constitute such probable cause, unless same is found in the last clause therein, but it does evidence the fact that the affiant who signed the affidavit therefore had reasonable ground to believe that James M. Stevens had this property concealed in the residence at 4210 Gables Street, in Amarillo, Texas, and that same was believed to have been stolen.
It is not necessary that such evidence be set forth in the request for a search warrant nor in the search warrant. This has often been held in many cases.
The operation of Article 325, supra, being older than the subsequently enacted search and seizure law, should at least be construed within its patent intendment. See Hammond v. State, 121 Tex.Cr.R. 596, 49 S.W.2d 779.
The affidavit for a search warrant is practically a complaint that the accused took this property from the person in possession thereof without his consent and that same was therefore stolen; and nowhere in said warrant or in the affidavit therefor is it alleged that an effort was being made to locate testimony that might be useful in the endeavor to ascertain the identity of the robbers, but only for the purpose of preventing the consequences of theft and to return to its proper owner the cash register and certain money that had been taken by the robbers.
Naught is said in the statute relative to probable cause, and naught is said in any of the statutes relative to search warrants, beginning with Article 304, C.C.P., and ending up under Title 6; and probable cause is not therein found to be mentioned. It is found only in the Constitution.
Article 315, C.C.P., sets forth four requisites for...
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