Elms v. State , 114 Tex. Crim. 642 ( 1930 )

Appellant earnestly insists that his case is not comprehended by that of Justice v. State, 18 S.W.2d 657, wherein we passed upon the proposition that one who is not notified by the officers of the fact that they have a search warrant, as is set out in Art. 319, C. C. P., can object to the subsequent actions of the officers, and what was found by them, as being evidence obtained in violation of the law. A re-examination of the Justice case convinces us that on its record this case is in precisely the same condition as the Justice case. The bill of exception presenting this case does not set out any facts as supporting the contentions made in the objections. However, we understand the Justice case, supra, to hold that regardless of whether the officer notified the occupants of the premises about to be searched, such fact would not justify the rejection of testimony as to what he found upon such search.

We think the affidavit in this case not similar to the one set out and discussed in Ruhmann v. State, 22 S.W.2d 1069. After setting out that the affidavit was made on information and belief, we find the following statement made in said affidavit:

"Affiants have been informed by various parties that whiskey is being manufactured and sold on said premises and affiants have investigated and upon close investigation have smelled the odor of whiskey and mash; that such odor is very pronounced and all shades are closely drawn on said premises."

As we construe this statement it is a direct averment based on information of others that whiskey is being manufactured upon the premises. We find further no averment in the affidavit or search warrant that the premises to be searched constituted the private residence of appellant. Nor do we think the facts in this case justified such assumption. Appellant was only twenty-one years old, and there is no testimony that he was a married man or head of a household. His sister leased or rented the premises in question, making false statements to the owner as to the purpose for which she was renting it. She evidently turned it over to appellant for the purpose of conducting therein the business of manufacturing and selling intoxicating liquor. The fact that he and another man occupied it for sleeping purposes, or even for living in same, would under these facts hardly seem to justify the ascription to the premises of the character of a private residence. In any event, we think the original opinion not in error in holding the affidavit sufficient.

There is also complaint of the fact that upon cross-examination of the officers making the affidavit, it appears to have been developed that they did not have full information upon the matters set out in the affidavit. As we understand the authorities, this court has consistently declined to uphold contentions based on a claim that the statements in the affidavit could be shown or had been shown to be untrue, or that the officer was not justified in making the statements. These are matters for the magistrate to whom the affidavit is presented and who acts in a judicial capacity in passing upon the facts thus presented to him. Where the affidavit is sufficient in form and the magistrate accepts and acts upon same, this court declines to go behind the affidavit. Hunter v. State, 111 Tex. Cr. 252.

The motion for rehearing will be overruled.

Overruled.