*1 case holding case in the Griffin Any than that (1) It would reasons: fundamentally for two unsound be would relief, told had but who been requested no had require one who him, to confined those who place of confinement to leave his serving finish he allowed to demand refuse leave ever be free from in order to at that time his sentence part prisoner aof on the conduct clutches the law. Such (2) as we know it. human nature with would be inconsistent charged enforcing those It would the hands peonage by keep prisoner in form of power law the for whatever his sentence at times requiring him to serve might length dictate. time as the whim of the officer rehearing overruled. motion state’s James M. Stevens v. State. 26,512. December 1953.
No. Spence Rexford, by Rexford, Falls, James E. Wichita appellant.V . .. Dice, Attorney,
Wesley Austin, State’s for the state. *2 Judge. DAVIDSON, robbery, punishment with a conviction assessed
This penitentiary. years in the five at filling owner, operated, part for the a station in that
Harber County. city Amarillo which lies in Randall of About m., August o’clock, on three a. masked and armed one Harber, taking filling cash station the robbed men money, including contained about in register, which $40 $12 wrapped in six rolls of each. Harber unable was $2 in nickels identify any of the robbers. warrant, By of a search officers searched virtue the residence day appellant robbery after on second and found of drawer in “the east room” a dresser bed thereof six rolls in Appellant was not at home at the of nickels. time of the search. positive The witnesses state were unable to make having of those rolls of nickels as identification been taken robbery; they testify, however, showing did in to facts simi- folding wrappings larity in color and which would author- jury six so ize a to conclude rolls of nickels found were robbery. were taken in those which finding appellant’s of six rolls of nickels in residence The importance material fact of the establishment state’s case. challenged admissibility testimony by ap-
The urges pellant, who that the search warrant under which officers invalid, grounds objection made the search was chief being that the affidavit for and which the search warrant was based was made information and belief did and evidence cause for the issuance of the warrant. affidavit.reads follows: ) (Initialed top pen State of Texas “The at with and ( “County ink) of Randall : ‘Mrs. 11-24-52’ W.J.F. “I, Ewton, solemnly do Homer swear that on or about the August, day County A. D. 26th said James fraudulently M. did Stevens take from the of Marvin Harber, deprive without his consent with intent him the use, cer- thereof, to his own appropriate the same and to value custody control of care, personal tain together register with Harber, Marvin to-wit: —one cash said therein, I have money in lawful current contained $40.00 now property is the said and do believe believe house situated M. certain concealed James Stevens County and described as County, Street, Amarillo, Randall “Residence at 4210 Gables Texas. following
“My facts: belief is on the based persons together M. “Evidence that James Stevens robbery Marvin on the said committed of armed the offense robbery took Harber on the date stated above and *3 con- possession his property without from his above described sent. seize
“Wherefore, and I warrant to search ask that a the property in accordance with be forthwith issued provided. law in such cases Ewton.
“S/Homer Ewton on this me Homer before “Sworn to and subscribed day August, A. D. 1952. 29th Peace, Flesher, of the J. Justice W. “S/Mrs. 4, County, Texas.” No. Randall Precinct may sepa- composed of three said that affidavit is (First) and rate divisions: the direct The affidavit contains of theft appellant crime positive that committed the statement register (Second) stealing Harber. The in a cash $40 property con- expresses was affiant the stolen belief is by appellant in Note in a certain residence Amarillo. cealed alleged appel- is it was to be taken of the fact that it not owner, occupant, appellant either lant’s residence or that' residence, charge person is the name of or owner, occupant, in of said nor given person or to be in stated property (Third) is al- unknown. The where the stolen leged being upon information ot be concealed is shown as might belief, only. No facts are stated which the existed authorize concluded that cause there to have search, and warrant warrant. the issuance it is true that affiant states that the information While 250 upon referred are based
belief to evidence Stevens and robbery, took- in others thése facts do not con- stitute that such con- cause belief Was expres- cealed the residence described the affidavit. Such sion, therefore, does not constitute a statement facts evi- dencing authorizing the issuance of the search premises to search named. Constitution, by 1, 9, prohibits Art. the issuance
Our
Sec.
also,
See,
of a search warrant
information
belief.
State,
Chapin v.
107 Tex.
1095.
Cr. R.
S. W.
private
A warrant
search
residence must be based
evidencing probable
an affidavit
cause for its issuance. McLen-
nan v.
109 Tex.
447.
S. W. 2d
receipt
evidence of the
found
the home
illegal
requires
of the accused as the result of
search
a reversal
727a,
P.;
of the conviction. Art.
Davis v.
V. A. C. C.
Tex. Cr. R.
In we were are agree requiring unable law corroboration of accom- plice given charge testimony properly jury. pointed out, judgment
For error reversed and the remanded. *4 Opinion approved by the court.
GRAVES, Presiding Judge (Dissenting). depends mainly a
This case certain search warrant opinion probable which it is in claimed did not evidence cause issuance of such warrant. place,
In the first it is that the writer’s contention this search 325, warrant was in opinion under issued Article C.C.P. The attempts fallacy this case to base the issuance this probable being the lack of shown therein. 325, C.C.P., Article Vernon’s reads as follows: persons right consequences prevent “All a have theft seizing any personal property stolen, and which has been taken, be- offender, if can be supposed bringing it, he delivering a same to examination, magistrate for or fore seizure, there justify such purpose. To peace officer for suppose the however, ground must, reasonable be pro- openly made stolen, must to*be seizure and the delay.” ceedings had without ground takes may be contended reasonable v. as this. See Constant cause in such cases 791, cited. (2d) cases there Rep.
155 Tex. Cr. 229 S.W. re- itself was for the warrant It will be observed that Harber, covery personal property Marvin of certain taken from together current register, in lawful to-wit: one cash with $40.00 alleged money therein, to have been contained and same was County, Street, Amarillo, Randall concealed at 4210 Gables on is based Texas. following belief that such is there contained The together with facts: M. Stevens “Evidence James persons robbery armed on the offense committed rob- said Marvin such Harber on the date stated above bery took from his the above described without his consent.”
True, it is therefor not shown in said affidavit existed, cause, what would constitute therein, unless evi- same found in the last clause but it does signed dence the fact the affiant therefor who the affidavit ground had M. had reasonable to believe that James Stevens Street, concealed in the at 4210 Gables residence Amarillo, Texas, and that same was believed to have been stolen. necessary
It is not that such evidence be set forth request search warrant nor the search warrant. This many has often been held cases. operation being supra, of Article older than the
subsequently law, enacted search and seizure should at least be patent construed within its intendment. See v. Hammond (2d) Tex. S.W. 779. *5 practically complaint affidavit for a warrant search is property person posses- the accused took this the sion thereof without his consent and that same was therefore stolen; and nowhere in said warrant or in the affidavit therefor alleged testimony being
is it that an effort was locate made to might identity be useful in to the endeavor ascertain the robbers, only purpose preventing the but the con- sequences proper to of theft and return its owner the cash to register money by and certain that had taken the robbers. been
Naught probable cause, said is in the statute and relative to naught warrants,- any said of the statutes relative search to beginning ending C.C.P., up with Article Title and under 6; and cause is not therein found It to be mentioned. only is found in the Constitution. 315, C.C.P., requisites
Article forth sets four search property warrant supposedly concealed, to seize stolen “1. That it run in the name of of Texas.’ ‘The State alleged “2. That it describe the stolen or con- to be cealed, alleged concealed, and the where it is brought magistrate. order the same to be before having person “3. That it name the accused stolen or con- property; or, unknown, cealed the if his name be it de- accuracy, him scribe with etc. signed by magistrate,
“4. That dated it be and directed peace proper county.” to sheriff or other officer of the It proffered is evident that warrant herein contains all these constituent elements set forth in the statute. The name; proper alleged runs it describes stolen; having person have been it names the accused of stolen property; signed magistrate. by and it goes further, however, and states that the affiant has evi- appellant, together others, dence that committed the robbery armed offense on the date set forth this rob- bery took the above described from the thing person only robbed. The could he have persons participated had he been told two of the who robbery the fruits thereof were concealed at the home appellant. probable cause,
It has been often held that even for it is not necessary give extent of information or the name of person who offered it. *6 to where circumstances, is unable see the writer these Under for the search affidavit any be found with there is fault to or the warrant itself. warrant search Jur., said: pag sec. it is
In 38 Tex. affidavit to sufficiency show the facts stated “The magistrate by the probable primarily for determination cause is alleged there- pass information and he must truth on the by issued, implies a belief this in. If search has been warrant affiant’s statements. the truth the warrant issue to there was cause to “As whether question the affidavit and is a determined from face of aliunde.” evidence grounds only requiring to believe the
The statute reasonable sought-for requisite stolen, writer thinks fully has been met. original opinion herein our Consti-
It is stated in the tution, I, of a search prohibits issuance Article Section agree. I do not warrant information With that and belief. However, agree I do that a issued warrant cannot be search but, course, alone, informa- information and belief warrants tion and belief must enter all warrants —search into filing person affi- or are issued unless the otherwise —that eye-witness transaction. davit was an to the warrant I, Article Section 9 of reads as the Constitution “NO UNREASONABLE SEIZURES AND SEARCHES AL- houses, people persons, shall be secure their LOWED.—The papers possessions from all unreasonable seizures or searches, any any place, to seize search or no person describing thing, issue them as near as shall without may be, cause, supported by affir- nor without oath or mation.” phrase our
It is under cause” that “nor without disagreement usually arises. present instance,
In affiant the writer thinks knowledge possessed him to have certain that caused was probable saying searched Street, Amarillo, at Ran- contained the residence “4210 Gables (affiant) County, Texas,” dall Homer Ewton and that the said has that the believe said is now concealed M. James in a Street, Stevens residence at 4210 Gables County situated in said Unquestionably, of Randall. portion *7 of this upon statement belief, is based information and not but entirely so because the affiant swore that he had evidence to that requested effect at the time he the such search issuance of My warrant. brethren disturbed are over the that affi- fact the allege davit for the warrant does not that No. 4210 Street Gables appellant. was the residence of If such was not the appellant, object then he had no reason to to a search thereof. State,
In 521, v. 275, Seale 114 Tex. (2d) R. Cr. 26 S.W. it is held that an affidavit for in- a search warrant not sufficient solely belief, because made on information and probable also that may upon the existence of cause based be hearsay. The cases of State, 527, Ruhman v. 113 Tex. Cr. 22 R. S.W. (2d) 1069, State, 442, and Villareal v. 113 Tex. Cr. R. 21 S. W. (2d) 739, probable may hearsay. also hold that cause arise
It State, was held in the case of v. 110 Tex. R. 90 Ware (2d) 551, probable upon S.W. that cause based information sufficient, and belief is not unless the facts which belief magistrate is based are set may out affidavit order that the judge be the as to whether or not exists for cause issuance the warrant. will observed be cause set forth present says affidavit in the case that the has “evidence” witness is concealed in house time. at such case, supra, It is also observed the main Ware setting reason for out what for constitutes is magistrate purpose satisfying whether relative to or not the warrant should issue. Juris, 676, par. 371, 3, quote Corpus p. from 33 sec.
We issued, affidavit, upon con- which a warrant an “Where positive justifying averments of the issuance tains facts warrant, validity by proof aliunde its is not affected reality upon in- positively stated were stated facts therein and belief.” formation Secundum, p. it is said: sec. Corpus
In 79 Juris issuing judge general the determination rule “As existed probable question of fact officer of the not reviewable.” of a search warrant the issuance 76; (2d) 584, Aguirre S.W. 109 Tex. Cr. v. See (Tex. Inc., Civ. Club, County Country v. also Coleman Commonwealth, 199 558; (2d) Bowen v. App.), 236 S.W. Ky. 400, there cited. and cases 251 S.W. purpose satisfaction the affidavit is usually question deter- issuing magistrate, it or not
mined trial of the case whether justify the issuance him to had sufficient evidence before warrant. *8 (2d) Tex. R. S.W.
In Rozner v. there appear record from the court held that it must this magistrate upon part has been an abuse of discretion the warrant. holding issuance of for the the facts sufficient opinion, quote: From the we opinion an words, that when
“In other this court is presented asked to which he is affidavit the facts to which issue a contains statement of search warrant oath, sufficiency the facts thus affiants make magistrate, a dis- primarily and that he has stated determining such premises, and action in cretion in the that his of the warrant form the for the issuance facts sufficient to basis us appears to unless it will not reviewed this court confided to there magistrate, an abuse of the discretion thus has been appear affidavit.” no facts in such and that sufficiency war- affidavit for a search to the Relative court, rant, 123 Tex. Cr. in Alexander v. this following (2d) 157, affidavit: held sufficient the S.W. following facts, circumstances
“This affidavit based information, where That is a to-wit: said residence intoxicating liquors or sold violation are manufactured state.” the laws
Being present case is convinced that the affidavit issued, I been proper the warrant should have form and reason respectfully this cause for the the reversal of dissent to opinion. main set forth