Carnell v. State , 126 Tex. Crim. 104 ( 1934 )

In the light of appellant's motion, we have again carefully gone over the matters complained of. We still regard the affidavit, and the search warrant based thereon, as sufficient. The affidavit was signed and sworn to by two affiants before a magistrate; described the premises to be searched as, — the private dwelling and buildings and grounds appurtenant thereto, occupied and controlled by Jack Carnell, and described as "A dwelling house, all outhouses, and premises, about one-quarter of a mile east of the J. R. Goss store, about thirty miles northeast of Bonham in Fannin County, Texas; is a place where whisky and beer are being manufactured and sold in violation of law and of Art. 666, Penal Code of Texas." See Penny v. State, 114 Tex.Crim. Rep.; Green v. State, 12 S.W.2d 790; Montalbano v. State, 116 Tex.Crim. Rep.; Schwartz v. State, 120 Tex.Crim. Rep..

On the question as to the correctness of our statement that the door was nailed up between that part of the house occupied by appellant and his wife, and that part occupied by others, — we quote what one of the women testified who lived in the room next to those of appellant: "There was no passageway between my room and Jack Carnell's, — I have got it nailed. I don't know how Jack Carnell's room was fastened the night of the raid; I know the officers had to break into it." Whether the room leading from appellant's part of the house was nailed, or closed by a button and had a bed pushed against it on appellant's side of the wall, would still leave us unable to find anything in this record to support any reasonable conclusion that the whisky found by the officers in appellant's room, belonged to or was placed there by some one other than appellant, — who occupied said rooms with his wife, but was gone to a concert at the time the officers searched the place. The fact that a voice said by a witness to be not that of appellant was heard apparently coming from said rooms of appellant about 9:30 P. M., the night of the search, offers no tangible opposition to our conclusions. Ras Taylor said he heard some one in there and he thought it was Jack. Later he said it was not Jack. Ras Taylor's wife said she heard some one in there, and thought it was Jack. Since the officers apparently found no way to get into appellant's rooms after examining the various approaches, — save to break in as they did, — it would require some stretch of imagination to believe that a burglar got into appellant's rooms about 9:30 P. M. without noise of breaking or entry, and not only made an equally noiseless getaway but left behind him several gallons of whisky. We see no similarity between the facts in this case and those in Whitehead v. State,60 S.W.2d 207, or the other cases cited by appellant.

The motion for rehearing is overruled.

Overruled.