Ware v. State

• Decision Date: 07 March 1928
• Docket Number: (No. 11334.)
• Citation: 7 S.W.2d 551
• Parties: WARE v. STATE.
• Court: Texas Court of Criminal Appeals

7 S.W.2d 551

WARE v. STATE.

(No. 11334.)

Court of Criminal Appeals of Texas.

March 7, 1928.

Rehearing Denied May 2, 1928.

Second Motion For Rehearing Denied June 20, 1928.

Appeal from District Court, Denton County; Alvin C. Owsley, Judge.

John Ware was convicted of possessing intoxicating liquor for purposes of sale, and he appeals. Affirmed.

Joe S. Gambill and Robert H. Hopkins, both of Denton, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

Four bills of exception are in the record. Nos. 1 and 2 set forth alleged errors in admitting testimony of the officers to the finding in appellant's barn of certain whisky, two barrels of mash and a stove. This testimony was objected to because of supposed defects in the affidavit for search warrant, it being averred that the premises were not sufficiently described, and also that the affidavit contained no statement of the facts upon which the makers based their belief that the law was being violated on the premises desired to be searched. But for the fact that appellant himself took the witness stand and affirmed that the officers did find the whisky, the mash, and the stove referred to — we would discuss the alleged errors set forth in said bills of exception, but the record, clearly demonstrating that the testimony thus obtained by the officers and by them put before the jury, was given to the jury without objection from another source than that of said officers — we would hold said bills to bring before us nothing capable of injury to the appellant, and that hence said bills of exception present no reversible error. McLaughlin v. State, No. 11286 (Tex. Cr. App.) 4 S.W.(2d) 54, opinion handed down February 15, 1928, and not yet [officially] published.

Bill of exceptions No. 3 presents no error. It sets up the refusal of a peremptory instruction for acquittal based on the reception of the evidence of the officers above discussed. Bill of exceptions No. 4 was to the refusal of a new trial. In the motion no errors are set up other than those presented in the three bills of exception above mentioned. The evidence of the finding of the quantity of intoxicating liquor in the possession of appellant was sufficient to justify his conviction for the offense charged. He made a defense based on the proposition that the liquor in question was the property of a negro who had used and occupied his barn. This presented a jury question, which they have solved against him.

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

On Motion for Rehearing.

HAWKINS, J.

Appellant's motion for rehearing proceeds on the theory that our former opinion, in effect, held that the search warrant under which the officers acted was predicated on an insufficient affidavit; that if the evidence of the officers be discarded the testimony given by appellant was not sufficient to make out a case against him; and that the principle announced in the recent cases of Kelsey v. State (No. 11188) 4 S.W.(2d) 548 (date of opinion March 21, 1928), and King v. State (No. 11193) 4 S.W.(2d) 550 (date of opinion March 28, 1928), should be controlling here. In our original opinion we did not consider whether the affidavit for the search warrant was sufficient, but based the disposition of the case on the sole proposition that appellant's own evidence made out the case against him. Our conclusion in that regard may be debatable as pointed out in appellant's motion. The evidence of the officers does unquestionably show such a state of facts as authorized the verdict. Whether such evidence was properly admitted depends upon the sufficiency of the affidavit for the search warrant. It is no longer an open question with this court that an affidavit, which on its face discloses that it was made upon "information and belief," is not sufficient unless the facts or information upon which the belief is based be set out in the affidavit in order that the magistrate may for himself be the judge whether "probable cause" exists for the warrant to issue. Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095. For collation of other cases following Chapin, see Sutton v. State (Tex. Cr. App.) 300 S. W. 639.

The affidavit in the present case — deleting portions not thought to be pertinent — reads as follows:

"The State of Texas, County of Denton:

"We do solemnly swear that there is situated in said county and state a certain room, house, building * * * described as follows, to wit: The private residence, buildings, and premises occupied by John Ware, same being situated about 5 miles northeast of Aubrey, Tex., and about 2 miles northwest of the Spring Hill schoolhouse. The said room, house, building, * * * place John Ware has charge thereof. That in said room, house, building * * * place is kept, sold * * * in violation of law, intoxicating liquor of the following description, to wit, whisky and other intoxicating liquors, better description of same being to affiants unknown. * * * And that the owner of said intoxicating liquors is John Ware, and we do further solemnly swear that the said John Ware on or about the 22d day of December, A. D. 1926, in said county and state, did keep and was interested in keeping said above-described premises, building, room, * * * place to be used for the purpose of storing * * * selling * * * intoxicating liquor in violation of law. Wherefore we ask that a warrant to search the above-described place and seize said intoxicating liquor * * * be forthwith issued," etc.

The affidavit is signed by two affiants and sworn to before the county judge who issued the warrant.

The premises and property to be searched appear to have been sufficiently described.

It will be observed that the affidavit does not on its face disclose that the averments therein are based "upon information and belief." Affiants state in positive terms that appellant kept and sold in the described premises intoxicating liquor in violation of the law. Where the ultimate fact is stated as a fact, and not merely as upon "information and belief," it has been held sufficient to justify the magistrate in his conclusion that "probable cause" existed for issuing the warrant, provided those things stated as facts would, if true, furnish such "probable cause." Neal v. Commonwealth, 203 Ky. 353, 262 S. W. 287; Mattingly v. Commonwealth, 197 Ky. 583, 247 S. W. 939; Caudill v. Commonwealth, 198 Ky. 695, 249 S. W. 1005; Walters v. Commonwealth, 199 Ky. 182, 250 S. W. 839; Moore v. Commonwealth, 200 Ky. 419, 255 S. W. 77; State v. Shaffer, 120 Wash. 345, 207 P. 229; State v. Smith (Okl. Cr. App.) 235 P. 273. The reason for such holding appears to be very clearly and convincingly stated by the Kentucky court in Neal's Case, supra, in the following language:

"There is a manifest and material difference in the statement by an affiant that he believes there is whisky in a described place, and his statement he knows there is whisky there. In the one instance he avoids and in the other he assumes responsibility for the truth of his averment, and it is this difference that marks the dividing line between the cases. In the first place the affidavit does not furnish the magistrate any basis whatever for determining if probable cause exists. Nor does it afford the accused the basis for action against his accuser for redress if probable cause does not exist. But if the affiant swears that facts constituting probable cause exist, or that he knows they exist, the magistrate has reasonable...