Stanzel v. State , 112 Tex. Crim. 628 ( 1929 )

Appellant questions the correctness of our opinion in construing the two attached affidavits as one instrument. They were made before the same magistrate on the same date and were fastened together with a clip which would seem to justify the conclusion that they should be considered together as one document. Further strength is added to such conclusion because, until the contrary is shown, we must assume the magistrate acted within his legal rights in issuing the search warrant. This right did not arise from the recitals in either of the affidavits when considered singly, but when taken together did contain averments authorizing the issuance of the warrant. Appellant's argument in his motion for rehearing that both of said affidavits might not have been before said magistrate when he issued the warrant, but that one might have been presented subsequent thereto is not supported by any proof on the subject. If the two affidavits were made at different times and both of them were not before, and considered by, the magistrate when the warrant issued such fact would appear to have been easy of ascertainment, but so far as the record shows no effort was made to enlighten the court on that point.

Both of the affidavits in question are signed "S. F. Hunt." The jurat to one of them reads "Sworn to and subscribed before me by Carl Utterback." The jurat is signed by Carl Utterback, Justice of the Peace. The point is now made that on its face the affidavit appears to have been sworn to not by Hunt but that Utterback swore himself to it. This question was not raised in the court below where there would have been opportunity for explanation with reference to such recital in the jurat. It is shown by the certificate of fact in one bill of exception that Hunt testified that he signed both affidavits and that Utterback swore him (Hunt) to each of them. The face of the jurat indicates a clerical error which is made certain by Hunt's evidence. Boren v. State, 192 S.W. 1063; Means v. State, 82 Tex.Crim. R., 244 S.W. 149. See also authorities collated under Sub-division 8, Sec. 480, Branch's Ann. Tex. P. C.

Appellant's motion for rehearing is overruled.

Overruled.