Ware v. State , 110 Tex. Crim. 90 ( 1928 )

For the reason that the sufficiency of the affidavit upon which the search warrant was issued was not made a subject of discussion until the motion for rehearing was acted upon, the appellant was permitted to file a second motion for rehearing, which has been carefully read and considered. The conclusions stated in the opinion on motion for rehearing, namely, that an affidavit made by a person whom the magistrate regards as credible and in which affidavit it is stated in positive terms that in the place described in the affidavit whisky and other intoxicating liquors are kept and sold in violation of the law and that upon the presentation and consideration of such affidavit the magistrate issues a search warrant, the same is based upon probable cause as that term is defined in the Constitution and laws of this state and of the United States. As stated in the opinion on motion for rehearing if the affidavit states merely the belief of the affiants that such liquors are kept and sold, then the probable cause is not shown unless the affiants, in the affidavit, make a further statement showing the facts upon which the belief is founded. The affidavit in the present instance does not state a belief, nor does it purport upon its face to state a conclusion but a fact which, if true, gives authority for issuing the warrant, and which, if untrue, renders the affiants amenable to prosecution for making a false oath and also renders them liable for civil damages. An inquiry into the truth or falsity of the affidavit would be collateral and inadmissible in the present trial. These conclusions are supported by the reason and authority reflected in the opinion of Judge Hawkins in overruling the motion for rehearing in this appeal.

The second motion for rehearing is overruled.

Overruled.