Chapin v. State , 107 Tex. Crim. 477 ( 1927 )

DISSENTING OPINION. A dissenting opinion can be justified only when the principle announced is believed to be right, and a statement of the reasons for dissent relate to some matter of importance to the people. From the beginning of jurisprudence in Texas until now our courts have had but one rule in regard to the form of affidavits to complaints necessary in the institution of criminal or quasi criminal proceedings, whether such affidavits formed the basis for the arrest and prosecution of men for murder, rape, robbery, burglary, etc., before an examining magistrate, or be the foundation for the prosecution in the county or justice courts for all sorts of offenses of the grade of misdemeanor, or be that upon which a search warrant to investigate, seize and discover matters of evidential value, was issued. The rule has always been, as far as I have been able to find out, that such affidavit might be made on information and belief. Authorities may be found cited in note 11, under Art. 222, of Vernon's 1925 Revised Criminal Code of Procedure.

No case can be found in which the courts of Texas have been divided on this question until now. The form for affidavit to such complaint is statutory. Art. 222, C. C. P., relating to the form of such complaint, states as follows:

"It must show that the accused has committed some offense against the laws of the state, either directly, or that the affiant has good reason to believe, and does believe, that the accused has committed such offense."

Upon complaints in this form warrants have been issued through the years commanding the arrest of men — the seizing of their bodies — for murder, rape, robbery and all offenses of whatever grade, and no Texas court has questioned the legality of such arrest. If necessary in order to execute such warrant the house of the accused may be broken and entered and he be seized in any place to which he may have fled or in which he may have taken refuge. Bristow v. State, 36 Tex. Crim. 381. Attempts have been made to have this court hold affidavits in conformity with this statute violative of the constitutional rights of persons to be secure in their houses, etc., but the attempts have been abortive. Fricks v. State, 124 S.W. 922.

That part of our statute relating to search warrants is found in Title 6, C. C. P., and nowhere therein is it suggested that a different form of affidavit would be required for the obtaining of a search warrant than for the arrest of the person. The only requirement stated in said Title 6 is that a "written sworn complaint" be made to the magistrate. Judge Willson, for many years one of the most profound and able judges on this court, long since prepared forms based on his conception of the procedure commanded by the criminal statutes of this state, doubtless with the assistance of his brilliant colleagues, Hurt and White. The forms so prepared for affidavits for search warrants are numbered 1105 to 1108 in the 4th Ed. of Willson's Criminal Forms. In form 1105, after setting out that the affidavit must state that A. B. took from the affiant property, it is stated as follows: "And I have cause to believe that the said property is now concealed by the said A. B. in his dwelling house, situated in said county (describing it), wherefore I ask that a warrant to search for and seize the said property be issued," etc. This is the form laid down by Judge Willson under present Art. 310, C. C. P. Under Art. 311, C. C. P., his form is 1106 and sets out as follows: "And I suspect one A. B. of being the thief of said property, and have good ground to believe that said property was so stolen by him as aforesaid, wherefore I ask that a warrant to discover and seize said property be issued," etc. Forms 1107-1108, after describing the place desired to be searched, state: "Which place one A. B. is supposed to have charge of," etc. These latter forms are for the searches authorized under Art. 312, C. C. P. It is at least probable that hundreds, if not thousands, of search warrants have been issued in this state upon these forms since Judge Willson prepared them, without question being made.

In 1907 the Legislature of this state enacted a law authorizing the issuance of search warrants upon affidavits expressly made on information and belief. In 1909 the validity of this law was attacked in Dupree v. State, 102 Tex. 455, upon various grounds, one of which was that the requirement of probable cause in our Constitution was not met by an affidavit made on information and belief. The opinion in said case is exhaustive and was written by one of the strongest men who ever graced the Supreme Court of Texas, Hon. F. A. Williams. Practically all the authorities cited by my brethren in support of their opinion herein were reviewed. Judge Williams declined to uphold the attack on said law on the ground stated, but did hold same invalid for other reasons. Some of his remarks are pertinent to the discussion of the question now before us, and I quote as follows:

"Our Code of Criminal Procedure has contained, since the revision of it in 1879, a provision which says that a complaint 'shall be deemed sufficient' for the issuance of a warrant for the arrest (seizure) of a person when it states, among other things, that the accused has committed an offense, naming it, 'or that the affiant has good reason to believe, and does believe, that the accused has committed such offense.' We do not discover that any question has ever been made as to the constitutionality of this latter provision, although complaints following it have repeatedly been held sufficient. Brown v. State, 11 Tex.Crim. App. 451; Clark v. State, 23 Tex.Crim. App. 260; Hall v. State, 32 Tex.Crim. Rep.; Anderson v. State, 34 Tex.Crim. Rep.; Smith v. State, 45 Tex. Crim. 411. Probably the large majority of warrants of this kind, for almost thirty years, have been issued as a matter of course upon complaints using this language.

"The provisions of the same code concerning the issuance of the search warrants therein provided for are not of such easy construction, but some of them recognize the sufficiency of complaints stating the affiant's belief of at least some of the facts. All of these provisions seem to require the issuance of the warrants as a matter of course upon the filing of the required complaints, and none of them express the idea that the magistrate, when the prescribed statements have been made, shall pass upon the question as to their sufficiency to show probable cause. No question of the kind seems ever to have been made concerning them. In other states the same kind of legislation seems to have been common. In Lowrey v. Gridley,30 Conn. 450, and State v. Davie, 62 Wis. 305, the sufficiency of such affidavit to comply with the Constitution is directly affirmed. In Maine and Vermont, and probably in other states, the same view has been repeatedly acted upon. State v. Welch, 79 Maine, 104; State v. Nowlan, 64 Me. 531; Lincoln v. Smith,27 Vt. 329; State v. Prescott, 27 Vt. 194.

"Massachusetts decisions are cited as announcing the same doctrine, but the statutes of that state seem to have required the complaint to be so shaped as to submit the question of probable cause to the magistrate, and the decisions in that state may not conflict with those authorities first mentioned. In the case of Commonwealth v. Certain Lottery Tickets, 5 Cush. 369, the course at common law is said to have been for an affiant seeking a search warrant to swear that he 'has reasonable cause to suspect,' etc. In the case of Elsee v. Smith, 1 D. R. 97, the judges of the King's Bench declared that a justice of the peace might lawfully issue a search warrant upon affidavit of belief; but such authorities as the two last probably assume, which seems to be the truth, that at common law it was left to the magistrate to determine whether or not the complaint, however worded, presented probable cause. Some of our statutes, particularly that in question, as well as those of many other states, leave him no such discretion, but require him to issue the writ upon the making of an affidavit containing the prescribed statements. The Legislature has thus, in effect, determined that such oaths, in themselves, show probable cause, and we are confronted by the question whether or not it had power to do this. It is obviously true that the Legislature cannot dispense with the requirement of the Constitution that probable cause be shown, and that, therefore, it cannot evade this limitation upon its power by an attempt to make that probable cause which plainly is not such. But have we such a case? In determining a question like this we must take into consideration the history of the subject and what has been regarded as probable cause and when we find that that which the Legislature has, in this instance, treated as being sufficient has been thus long and extensively so regarded here and elsewhere by both legislative and judicial authority, it would be difficult to say that there is such a plain and palpable violation of the Constitution as to justify the courts in declaring the statute void, and if this were the only objection to the Act in question we should hesitate long before reaching such a conclusion."

Special attention is here called to the concluding part of said quotation:

"When we find that that which the Legislature has, in thisinstance, treated as being sufficient has been thus long andextensively so regarded here and elsewhere by both legislativeand judicial authority, it would be difficult to say that thereis such a plain and palpable violation of the Constitution asto justify the courts in declaring the statute void. * * * Weshould hesitate long before reaching such a conclusion."

So the matter stood, and for that matter stands. No change has been made in the statutes of this state relating to the forms of affidavits in any case. In 1919, to make effective the constitutional forbiddance of the sale, manufacture, etc., of intoxicating liquor, the so-called Dean law was enacted. See Chapter 178, Acts First and Second Called Session, Thirty-sixth Legislature. Sec. 37 of that Act is now Art. 691 of our Penal Code. Said Act was written prior to the enactment of the Federal statute quoted in the opinion of the majority.

So we see that up to now but one form of affidavit has been required in Texas, and that as far as can be told all warrants for search and seizure of things evidential, issued upon the same character and form of affidavit to complaints laid down by the statute, and upheld uniformly by the courts as sufficient to justify warrants for the seizure of the persons of such of our people as offended against the laws of the land. My brethren have reached the conclusion that we should hereafter require that an affidavit for search warrant must set out facts upon which the makers of such affidavit base their belief that the law is being or has been violated, and that such affidavit cannot be made on information and belief. I cannot agree with them, hence this dissent. The matter involved is of serious import. With profound conviction that I am right and that my brethren are wrong I set out at some length reasons for my dissent.

Boiled down, the reasons advanced by my brethren for their conclusion are but two, first, that the Federal courts and statutes announce the correct rule when they say that no search warrant should issue upon an affidavit made on information and belief and until facts are stated to the magistrate and put into the affidavit which appear to justify the makers in the belief that there is a violation of the law; second, that in Art. 691 of our Penal Code, relating to the issuance of search warrants for private residences in liquor violations, appears the word "show" which is by them construed to mean that such affidavit should contain a statement of the facts satisfactory to the magistrate taking the affidavit.

To students of the law it needs but to be stated that save in case some Federal question be involved, this court is in no sense compelled to follow Federal courts in their procedure or rulings. We have expressly declined in many instances to make our rules of procedure conform to those of the Federal courts on the same point. We decline to consider preliminary motions to quash search warrants and to return property seized thereunder. The Federal courts uniformly allow such practice. We do not allow oral charges to juries in felony cases, nor do we permit charges on the weight of the testimony, nor can a judge indicate under our procedure his opinion in a given case. We refuse to consider a motion to quash an indictment based on the ground that there was no evidence before the grand jury which returned it. Federal courts follow such practices. Many other differences between our rulings and those of Federal courts might be mentioned, but these suffice. So I take it the mere fact that Federal courts hold to a certain rule affords no justification for my brethren in inaugurating a new thing in procedure in this state, and especially so when the new procedure is a departure from the hitherto holdings and practice in the same regard in this state. In this connection attention is called to the fact that the Federal holding in regard to all affidavits for search warrants, is the same whether the place to be searched be a private residence or otherwise. This is stated in view of what I deem the inconsistent effort of the majority to justify their departure upon the second reason stated above, i. e., the use of the word "show" in a statute having reference solely to affidavits for search of private residences in liquor cases only.

Certainly this rule now laid down is one which will mark the beginning of at least one and likely two or three new rules in Texas as to affidavits — making more rigid the rule in regard to a search for things, than is required when the purpose is to seize the individual, and making necessary two forms of affidavits for search warrant, viz.: one when a private residence is to be searched, and another when the place to be searched is not a private residence, and making necessary one form when the residence is to be searched for a liquor violation and another when it is not so to be searched. Art. 691, supra, has reference to no other character of searches save for violations of the liquor statute. I shall presently discuss the correctness of these rules, but at this time I am only saying that the fact that same puts Texas procedure in this particular in line with Federal procedure, is not enough to justify the departure indulged in by my brethren.

Turning to the second reason above mentioned, viz.: that in Sec. 37 of the Dean law, which is now Art. 691, P. C., the use of the word "show" is claimed to justify this new departure in regard to affidavits. The author of the Dean Act in every section of same evidences his purpose to reinforce, strengthen and make effective a law whose sole purpose was the stoppage of the traffic in intoxicating liquor and punishment of those who violate it, and I assert that the Legislature never dreamed that the use of the very common, ordinary word "show," in referring to the affidavit necessary to the search of a private residence, would ever be construed or attempted to be held as meaning to prove, to make apparent, etc. The word is evidently used in its popular meaning of to state, to tell, to reveal, etc.

My brethren assert that the word "show" in Art. 691, supra, justifies them in concluding that the Legislature intended thereby to require in affidavits for search warrants for private residences in liquor cases, that the facts known to the two makers of the affidavit, should be stated; and that such facts must be sufficient to satisfy the magistrate in the first instance, the trial court in the next place, and lastly the Court of Criminal Appeals — that said affiants were justified in their belief that the party complained of was violating the law — and further justifies them in holding that such affiants may not make such affidavit on information and belief, but must make same upon their knowledge. Art. 691, supra, having used the word "show" only in reference to search warrant affidavits for private residences in liquor cases, we are thus driven by the opinion of the majority to the use of one form of affidavit for such searches, and a different form when search is of some place other than a private residence, because there is no word "show" anywhere in Title 6 relating to other searches, and still a different form when arrest and seizure of the person is purposed, and possibly a still different form when the purpose of the search warrant is to discover stolen property. It must be plain that the rule adopted by the majority being hereafter the law, we must abandon the plain, simple, easily understood, uniformly upheld statutory procedure of issuing warrants in all kinds of cases simply on the affidavits of credible persons who are willing to state on oath that according to their information and belief the law has been violated; and must commit our state to the following uncertain, hydra-headed, unprecedented substitute for our hitherto procedure, viz.:

Warrants for arrest of persons for all crimes may issue on affidavit based on information and belief.

Warrants for search of private residence in liquor cases will issue only on affidavits stating facts and not made on information and belief, because Art. 691, P. C., uses the word "show."

Warrants for search of private residences in cases other than liquor violations, will not issue on information and belief, because we hereafter follow the Federal procedure.

Warrants for search for stolen property, whether in private residences or not, will not issue on information and belief, because hereafter we follow the Federal procedure.

I wish to be plain. If the majority intend to say that the Legislature has no power and right under the Constitution to say that a warrant can be issued on a complaint sworn to on information and belief, and that all affidavits so made are unconstitutional — then what I have last above said should not be stated, but if they mean that our statute laying down forms for complaints upon which warrants for the seizure of all persons charged with violation of the law, shall issue on affidavits made on information and belief — but the warrant for search in all cases save when the object is a liquor violation in a private residence, must be based on an affidavit stating facts and made on knowledge, and that when the place to be searched is a private residence and the object is a liquor violation, then there must be the affidavits of two parties stating facts and sworn to on knowledge — then I repeat we are committed to a devious, uncertain and difficult procedure. To me there seems nothing in the use of the word "show" in said Art. 691, supra, a part of which is quoted in the majority opinion, to justify any such departure.

The majority contend that the word "show" means to make clear or apparent; to prove, and they cite a number of authorities from other states than Texas to support their contention. We are not without legislative rule of construction on this point, and I prefer to follow the rule of construction laid down by our own state and to conform our practice hereafter to views entertained by judges of our own courts than to follow those of other states. Art. 48 of our own Code of Criminal Procedure commands that all words used in this code are to be taken and understood in their usual acceptation in common language — except where specially defined. Neither in Art. 691, supra, nor elsewhere in our statutes, is the word "show" given any special definition. Further, when words appear in lexicons or dictionaries as having more than one meaning or definition, the invariable rule is to first state that definition most common and popular — and then proceed to state those less so. Webster's International Dictionary is before me. The word "show" is therein given several sets of definitions. I state them in the order they appear: 1. To exhibit; to place in sight; to display. 2. To exhibit to the mental view; to tell; to disclose; to reveal. 3. To make known the way; to direct; to guide; to usher. 4. To make apparent; to make clear as by evidence; to prove; to explain. 5. To bestow; to confer. It thus becomes apparent that my brethren adopt as the definition of the word "show" the definition laid down in the lexicon as the next to the least used. My contention is that if the word "show" as used in Art. 691, supra, needs interpretation at all, it should be given the meaning: To tell; to disclose; to reveal, which definitions are so listed by the lexicographer as to make it indisputable that they are much more usually accepted as the meaning of the word and are more in common use than the ones claimed by the majority.

I may further call attention to the fact that their attempted definition violates another familiar rule of construction. My contention is strictly in line with said well settled rule of construction. Mr. Black, on page 98 of his work on Interpretation of Laws, says:

"The mind of the Legislature is presumed to be consistent; and in case of a doubtful or ambiguous expression of its will, such a construction should be adopted as will make all the provisions of the statute consistent with each other and with the pre-existing body of the law."

And also on page 110 of said work appears the following:

"It is presumed that the Legislature does not intend to make unnecessary changes in the pre-existing body of law. The construction of a statute will therefore be such as to avoid any change in the prior laws beyond what is necessary to effect the specific purpose of the Act in question."

Applying these plain and well settled rules, and looking to other statutes enacted prior to Art. 691, supra, in order to see in what sense the word "show" has been theretofore used by our Legislature, we observe the following instances: Subdivision 5 of Art. 395 of our C. C. P., relating to an indictment, says: "It must show that the place where the offense was committed," etc. Patently this means only the indictment must state that the offense was committed within the jurisdiction. No showing of facts aside from such statement, could have been intended. Again, Art. 463, C. C. P., uses this expression: "Such process shall show that the witnesses are summoned for the state and the defendant." It would be foolish to argue that this means anything save that the process muststate that it is for both parties. Also Art. 478, C. C. P., contains the following: "Shall issue a certificate * * * showing the amount of each item," meaning plainly that the amount of each item should be stated. Again, Art. 542, C. C. P., in reference to applications for continuance, says that same "Must show" * * * that the applicant expects to procure the attendance of the witness at the next term, and that the absent testimony cannot be procured from any other source. Manifestly this means only that the applicant must state suchfacts. So on and on. See Art. 556, C. C. P. Art. 566, C. C. P., 580-618-727 1/2-766 1/2-883, all in our Code of Criminal Procedure, and others. A final instance is Art. 222, C. C. P., which provides in reference to a complaint expressly that it must show that the accused has committed some offense against the laws of the state, either directly or that the affiant has good reason to believe and does believe that the accused has committed such offense — and thus completely by direct statute overturns the construction of my brethren by saying in so many words that a showing is accomplished by a mere statement on information and belief.

In view of the fact that no instance can be found in our statutes where the word "show" is used in the sense contended for by my brethren, and that our laws abound in its use in the sense contended for by me, and bearing in mind the statutory rules of construction above quoted, I would, as said by Judge Williams, supra, hesitate long before engrafting on our procedure a rule which depended for its vitality upon giving a meaning to a word of as common use as the word "show," a meaning different from that which has been heretofore used in our statutes. It is a familiar rule that when a word is used without special definition by a Legislature or by a court different from that which has been theretofore frequently used, the presumption is that they intended to use it in the same sense as theretofore.

How easy it would have been for the Legislature in enacting the Dean law, if they intended to conform our practice to that of the Federal courts in this regard, or to require a statement of the facts in an affidavit for search warrant in a liquor case, or to depart from long established construction of such affidavit — to have said so plainly instead of using the common word "show" without any indication whatever of an intention to depart from the use of that word in other Acts of the Legislature. Mr. Maxwell, in his work on Interpretation, 2d Ed., p. 96, says:

"One of these presumptions is that the Legislature does not intend to make any change in the law beyond what it explicitly declares, either in express terms or by unmistakable implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because, in their widest and perhaps natural sense, they have that meaning, would be to give them a meaning in which they are not really used."

How aptly the words fit what the majority are doing in this instance, without either "express term or unmistakable implication" in the state, they are imputing to the Legislature which enacted that statute an intent to change the procedure of fifty years — and with nothing to justify save the use in such statute of a very common word. They are giving to the enactment a meaning out of harmony with the whole body of our statutes and decisions.

A few more observations. We are commanded by Art. 23 of our C. C. P. in plain language to construe the provisions of this code so as to attain the object intended by the Legislature, viz.: the prevention, suppression, and punishment of crime. Unless the construction placed upon the word "show" will have that effect, it is wrong. If, as I contend, there is no need for interpretation, and if the taking of the word "show" in its common and popular meaning will tend to prevent, suppress, and punish crime, then I am right. Let us see. In the case before us an affidavit was made by two credible witnesses, who state on their information and belief, that this defendant possessed whiskey for sale in a certain place, which was his private residence; a warrant to search the place was issued. Search of same revealed appellant's possession of a quantity of whiskey which a jury under appropriate instructions have said he possessed for the purpose of sale. In other cases pending on our docket similar and kindred facts were discovered under process similarly sued out and in these cases juries have found the accused parties guilty. There appears no question as to guilt if the affidavit for search warrant be held legal, but if the word "show" be given the interpretation contended for by my brethren, all of these cases must not only be reversed but dismissed finally, for without proof of what the officers found upon search the state cannot make out its case. I cannot bring myself to believe when two constructions of a word or phrase are before this court — one of which will prevent, suppress, and punish crime — and the other of which will hinder and make difficult the processes of the law and turn guilty men loose — that we can shut our eyes either to the command of Art. 23, or the consequences of our adoption of one rule or the other. But it may be asked, will the adoption of the construction of the majority hinder and make more difficult the enforcement of the law. In my thinking there is but one answer to that question, which is in the affirmative. My contention is that when two credible persons make an affidavit stating that to the best of their belief and information a crime is being committed in a certain place, a warrant to search that place should issue, and it is evident that if this is adopted it constitutes a plain, simple, uniform and easily understood process of the law. From cases coming before this court it is plain that this is the process that has been adopted throughout our state and that all of the affidavits heretofore made are in this form. In my judgment this fully measures up to the probable cause clause of our Constitution as same is interpreted in the approved opinion in Landa v. Obert, 45 Tex. 539. In line with this Judge Williams in the Dupree case, supra, says, referring to the provisions of our statute: "All of these provisions seem to require the issuance of the warrant as a matter of course upon the filing of the required complaint, and none of them express the idea that the magistrate, when the prescribed statements have been made, shall pass upon the question as to their sufficiency to show probable cause." Some of the difficulties following the adoption of the construction contended for by my brethren are patent. If it be required that facts stated in the affidavit be deemed sufficient by the magistrate, it would be pertinent to ask what facts will be deemed sufficient in a given case to justify the magistrate in the issuance of the search warrant. Since it is inevitable that no two cases rest on the same facts, it must follow that no rule can be laid down which will apply to different cases. In wet territory one rule may be laid down. In dry — a totally different rule. If a wet magistrate demands as a condition precedent to such issuance, extreme facts — or if he refuse to accept as satisfactory to him any facts offered, who is there to command him otherwise? No one. In such case the search and seizure law would be wholly impotent. On the other hand, should a dry magistrate accept a given state of facts and on same issue his warrant resulting in the discovery of extensive criminal operations, and this was followed by indictment and trial in the District Court, the evidence of what had been discovered by the search warrant would be objected to upon the ground that the facts stated in the affidavit for search warrant were insufficient, and same might be held sufficient or not, according to the view of the trial judge. If he held the same insufficient, the criminal, though guilty, would go unpunished. If he held the facts sufficient, an appeal might be taken to the Court of Criminal Appeals and here the facts might be deemed not sufficient, and in such case again the guilty party would go unpunished. In any event the opinion of the court upon the facts in a given case would furnish no precedent for the guidance of the lower courts in the next case up for trial or before the magistrate, because each would differ on its facts. Every magistrate would necessarily be a law unto himself; and those on one side of the imaginary line separating counties might adopt one standard and those on the other a totally different standard. Nor is this a purely imaginary result. No form of affidavit can be laid down for a guide to magistrates further than to say that if the place desired to be searched be a private residence, and the object be a liquor violation, that there must be two credible persons swearing to the affidavit on their knowledge. What else could be stated in such attempted form? Nothing save that the facts possessed by the makers of the affidavit must be set out and same must be such as to justify a reasonably prudent man in the belief that the law is being violated. So far as affording a guide or precedent upon which the magistrate may depend in the future, this will amount to nothing. He knows that no two state of facts are the same. He remembers that he issued a warrant on facts possibly no stronger than those now offered, and that despite the fact that a still in operation was found, the District Judge before whom the case was finally tried held the facts stated insufficient. Calling these facts to mind, and having no precedent, the magistrate will decline to issue the warrant, and who can blame him — and the enforcement of the law is crippled, vice becomes bolder.

There is another view of the matter. A search warrant is only an exploratory writ issued under prescribed formalities. It authorizes no arrest and no seizure unless upon its execution violations of the law are discovered. It is not to prosecute for things known or provable — but is an effort to find out the truth of things believed in reason to exist, and in the very nature of things known only to the probers upon information and belief. Its purpose is also to enable a man whose property or whose house is about to be searched to know that the person about to search same is an officer armed with legal authority. It seems so true as to be palpable that if the makers of the affidavit had knowledge amounting to proof as is required by the majority — why go through the idle formality of getting a search warrant? Why not at once make affidavit upon information and belief which, under all our authorities, justifies the arrest of the person of the offender and his prosecution for the crime. I repeat that I cannot bring my mind to comprehend any reason for the engrafting on our procedure the course in relation to proper investigation when the courts of this state have uniformly held that upon a less showing, and upon an affidavit made on information and belief, the person of the party complained against can be seized, thrust into prison, tried and condemned.

It would seem but reasonable and consistent that if the affidavit cannot be made on information and belief, then the facts possessed by the makers of the affidavit cannot rest on what anyone told them or information received by them except by the exercise of their physical senses, and in such case possessors of this knowledge would go and make affidavit and cause the arrest of the accused. Again, suppose A. and B. came to the magistrate to make affidavit for search warrant. He wishes to know their facts. A. states one set of facts, B. a different set. Neither will swear to the other's facts. Can the magistrate accept two affidavits, each stating different facts as measuring up to the rule now laid down by the majority? What I have said does not cover all that might be said concerning the ill-effects reasonably following the abandoning of the uniform holding of this court in regard to affidavits to complaints in this state. I have not discussed Arts. 4a and 727a, which are discussed by my brethren, because neither have the remotest bearing upon the question as to the form of affidavits necessary to complaints for search warrant or for any other purpose. If the Legislature sees fit to pass laws, this court can only construe them when they are so worded as to call for construction, and apply them when appropriate facts arise. But I believe the Legislature quite capable of writing into a law the proposition that an affidavit for search warrant in a liquor case or any other, must get out the facts upon which the makers base their belief that the law is being violated; also that the Legislature could write, if they so desired, that such affidavit could not be made on information and belief. The Legislature not having done so, and not having written anything indicating such to be their purpose, I for one am not going to write into a word a meaning which was evidently not intended; nor am I going to assent to the creation of a hurtful rule when I can legally, and in accord with statutory and judicial announcement of all our own holdings and hitherto Legislature speaking on this question in this state, follow the rule uniformly adhered heretofore, which seems not confusing but plain — not wrong but right — not a hindrance but a help to the enforcement of the law.

I most respectfully but firmly record my dissent.

Lattimore, Judge.