Brown v. State ( 1944 )

Appellant again complains because of the fact that the search warrant in the possession of the peace officers was based upon an affidavit signed by only one person. This complaint might have been justified had a search been made of appellant's private residence, but the testimony shows that the officers only searched appellant's filling station, and but one affidavit is necessary for the search of such a building or place, and it is our judgment that no error can be predicated upon the fact that such affidavit is signed by but one credible person. See Art. 666-20, Vernon's Ann. Penal Code.

Appellant contends because in his bill of exceptions No. 2, taken to testimony before the court in the absence of the jury, it is stated that the officers never gave or read to appellant the search warrant, that therefore no testimony obtained in said search was admissible. The burden of his objection is the failure of the officers to "serve" the warrant upon appellant. By the word "serve" we suppose is meant to read the warrant to appellant. We think a reading of the record would disclose that appellant waived the reading of this warrant. The testimony of the two officers shows that they informed appellant that they had a warrant authorizing them to search his place of business, and he said: "All right, go ahead." It is further shown that they did have a search warrant, which appears to be sufficient under the law, and they did search his place of business and found the liquor. Had the search warrant been based upon an insufficient affidavit, a different question might have arisen, but under the circumstances here present we think appellant could waive the reading of same, and his waiver precluded the necessity of a further reading or exhibition of the warrant. See 38 Tex. Jur., Secs. 53 and 54, pp. 77-78.

We are of the opinion that the views expressed in our original opinion properly dispose of this cause, and the motion for a rehearing is therefore overruled.