Hunter v. State , 111 Tex. Crim. 252 ( 1928 )

Appellant predicates his motion on the assumption that we misconceived the point presented by bill of exception No. 1 and improperly disposed of the question raised by bill of exception No. 2. It is apparent from the record, as well as from the qualification to bill of exception No. 1, that the sheriff to whom the search warrant was directed and the City Marshal were acting together, both being present, when the search was made. Under the circumstances we see no merit in appellant's contention that the City Marshal would not be permitted to detail the results of the search because the warrant was directed to the sheriff.

Bill of exception No. 2 sets out the search warrant under which the officers acted. The warrant appears regular. The recitals in it do not disclose any irregularity or defect in the affidavit upon which the warrant was based. The affidavit is not brought before us. The state exhibited the warrant as a predicate for admitting the officers' evidence as to the discoveries of the search. It is recited in said bill of exception No. 2 as appellant's grounds of objection to admitting such evidence (a) that the search warrant was not based on probable cause and that no facts were set forth in the affidavit that would authorize the search warrant to issue, (b) that if permitted the affidavit would have been impeached by the officers who made it, (c) that the warrant was not based upon a valid complaint under the law. Manifestly this court is in no position to pass upon any claimed defects in the affidavit without having it here for inspection, therefore the matters claimed to be defects can be regarded as grounds of objection only as they appear in the bill under consideration. Where a search warrant is regular on its face, (as it is here) the burden is on him who seeks to exclude the evidence obtained thereby to show that the affidavit upon which the warrant issued was defective. Henderson v. State, 1 S.W.2d 300; Skiles v. State, 2 S.W.2d 436; Arnold v. State,7 S.W.2d 1083; Chorn v. State, 107 Tex.Crim. R., 298 S.W. 290. It is further stated in said bill that appellant offered to prove and could have proven by the officers that the things stated by them in the affidavit as unequivocal facts amounting to probable cause were really based on information and belief only. It has been held in Ware v. State, 7 S.W.2d 551 and Bird v. State, 7 S.W.2d 953, that such an attack on the affidavit as was here attempted is not permissible. The reasons are fully stated in the opinions referred to.

The motion for rehearing is overruled.

Overruled.