Weaver v. State , 139 Tex. Crim. 134 ( 1940 )

Appellant earnestly insists that we erred in our original opinion in holding the affidavit for a search warrant sufficient. He contends that the affidavit contains the following: "that we have recently been informed by credible persons that intoxicating liquors are kept, possessed, found and sold in and upon the above described premises in violation of law and your affiants believe such information to be true and correct"; when, in fact, it is as follows: "We have this day been informed by credible persons that intoxicating liquors are kept, possessed, and sold in and upon the above described premises in violation of the law and your affiants believe that said information to be true and correct."

He vigorously asserts that this is but a conclusion of the informants and did not show that any person or persons had seen any person or persons sell intoxicating liquor at the Inn, nor that any intoxicating liquor was possessed there for the purpose of sale. We are not in accord with his contention. It occurs to us that the statement in the affidavit here complained of is a statement of a fact and not a conclusion. It is true that the affidavit fails to show how the informants acquired their knowledge or came into possession of the facts related to affiants, but we do not think that affiants would be required to inquire of the informants how or in what manner they acquired such knowledge and then set it out in the affidavit. Appellant cites us to the case of Steverson v. State, 2 S.W.2d 453, and a number of cases. We have examined them, but in our opinion they have no application to the facts of this case. In the case of Steverson v. State, supra, the affidavit shows that it was based wholly upon the belief of affiants. No fact circumstance or information upon which affiants' belief was predicated is stated in the affidavit. In the instant case, the affidavit is based upon information furnished on November 5 1938, by credible persons.

Appellant's next contention is that the succeeding County Judge could not enter an order nunc pro tunc. This question has been decided adversely to appellant in the case of Spears v. State, 136 Tex.Crim. R., and we see no need of again entering upon an extended discussion thereof.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.