Hartless v. State , 121 Tex. Crim. 181 ( 1932 )

In his motion for rehearing, appellant contends that the search warrant is defective; first, because in the affidavit the names of the persons from whom the affiants received information touching the violation of the law by the appellant are not disclosed; second, that the affidavit on its face is rendered defective by the use of the word "recently." That part of the affidavit which is pertinent is as follows: "* * * that affiants were recently informed by two credible persons that each of them and upon separate occasions had visited the place * * * and purchased intoxicating liquor from said Hartless;said purchases having been recently made and affiants werefurther informed that Hartless had a large quantity ofintoxicating liquor stored in the right rear room of said houseand Hartless stated to said parties and each of them that hewas never out of whisky and that they could buy it from him atany time."

In this state the requirement has gone no further than as stated in the affidavit in question, namely, that the search warrant may be issued upon an affidavit showing that the affiants based their affidavit upon information obtained from credible persons of the existence of specific acts set out in the affidavit. It has not been held in this state that the names of the persons from whom the affiants obtained their information must be set out in the affidavit.

Touching the first point, while taking into account the decisions of other states, there is a conflict of opinion, those in this state are in harmony and against the contention advanced by the appellant. Among the decisions of this court upon the subject are Rozner v. State, 109 Tex. Crim. 127,3 S.W.2d 441; Hamilton v. State, 120 Tex. Crim. 154,48 S.W.2d 1005; Davis v. State, 117 Tex. Crim. 167,36 S.W.2d 500; Bird v. State, 110 Tex.Crim. Rep.,7 S.W.2d 953; Piper v. State, 116 Tex.Crim. Rep., 34 S.W.2d 283; Ruhmann v. State, 113 Tex.Crim. Rep., 22 S.W.2d 1069. Some of the decisions of other states are listed in Cornelius on Search Seizure, 2nd Ed., pp. 413-415.

In some states the terms of the affidavit have been prescribed by statute declaring that it shall only be necessary that the affiant swear that they have good reason to believe and do believe that the law is being violated, etc. The language of the Constitution (art. 1, sec. 9) is that "no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation." The term "probable cause," as stated above, is not defined by statute. In different American jurisdictions there is a variety of opinion as to just what language is necessary in the affidavit to comply with the requirement of the Constitution. Compliance with the spirit of the Constitution is the criterion. The requirement might be increased by statute, but not diminished. As pointed out above, the decisions of this state are numerous demonstrating that in the opinion of this court the affidavit in the present instance satisfies the demand of the Constitution so far as it pertains to the first point urged by the appellant.

Dealing with the second point, counsel for the appellant, in the motion, attacks the affidavit upon the ground that by the use of the word "recently" as it appears in the affidavit, it is rendered uncertain and indefinite as to the time at which the alleged violation of law took place. It has been held that it should appear from the affidavit for a search warrant that the event relied upon as establishing probable cause was not remote in point of time. In Garza's case, 120 Tex. Crim. 147,48 S.W.2d 625, it is said: "The right to issue a search warrant is dependent upon the statement under oath in the application making clear the right to issue the warrant. Such affidavit, in order to comply with the requirement of the Constitution, is inadequate if it fails to disclose facts which would enable the magistrate to ascertain from the affidavit that the event upon which the probable cause was founded was not so remote as to render it ineffective."

Conceding that the term "recently" has a somewhat elastic meaning, due to the conditions under which it is used, it is thought that its use in the present instance is so connected with other language as to show that the event named was not too remote. See Ency. of Law Proc., vol. 12, p. 399; Words Phrases (2nd series), vol. 4, p. 206; Words Phrases (3rd series), vol. 6, p. 601. The affidavit is copied above in this opinion and the language particularly under consideration is italicized.

The motion for rehearing is overruled.

Overruled.