Rozner v. State , 109 Tex. Crim. 127 ( 1928 )

Appellant's motion for rehearing apparently proceeds on the theory that the statement in the affidavit for the search warrant to the effect that Blaylock had searched appellant's premises, etc., is the only statement which could be considered as presenting "probable cause." Such recital is not the only information contained in the affidavit. It recites specifically that affiants had been informed that about ten days or two weeks past appellant had fifteen gallons of whiskey in his smokehouse. True, affiants did not know of their own personal knowledge that such was a fact, and therefore could not swear to it as a fact, but this is not necessary. The affidavit sets forth the information which had reached them upon which their belief was based. If, as sworn to by them, such information had come to their knowledge, and was made known to the issuing magistrate in the affidavit, it presented such a state of affairs that this court would have no right to say as a matter of law that the magistrate had abused his discretion in deciding that "probable cause" existed for authorizing the warrant to issue. Grounds of belief, that is, facts,or circumstances or information on which the belief is founded must be exhibited in the affidavit. This is the extent of the holding in Chapin v. State, 296 S.W. 1095; and all others following it. Stokes v. State, 296 S.W. 1108; Peppers v. State,296 S.W. 1109; Green v. State, 296 S.W. 1109; Hodge v. State,298 S.W. 573; Montgomery v. State, 298 S.W. 596; Lawhorn v. State, 299 S.W. 413; Jenkins v. State, 299 S.W. 642; Caster v. State, 300 S.W. 61; Ferguson v. State, 300 S.W. 69; Sutton v. State, 300 S.W. 639. The recital in the affidavit of the information which had come to affiants in our opinion fulfilled the requirements of the law.

The motion for rehearing is overruled.

Overruled.