Sampson v. State ( 1953 )

ON APPELLANT’S motion for rehearing

WOODLEY, Judge.

Appellant urges that we should apply the law as stated in Hernandez v. State, 137 Texas Cr. Rep. 343, 129 S.W. 2d 301, wherein this court said that if the officer is armed with a defective search warrant and the accused says “all right, go ahead” consent will not be inferred.

In our original opinion we expressed no conclusion as to the validity or invalidity of the search warrant.

It was sufficient in form, as was the affidavit upon which it was issued by the magistrate. It was attacked through the testimony of the affiant who denied that he had sworn that the pistol which was the object of the search was stolen from him. He testified that the pistol sought was one with which a murder had been committed and the allegation in the affidavit which he admittedly executed, to the effect that it had been stolen from him, was not correct.

The attack, therefore, is as to the truth of the averments of the affidavit.

In Hernandez v. State, 158 Texas Cr. Rep. 296, 255 S.W. 2d 219, we held that a trial court may not go behind the affidavit and search warrant to determine the falsity of facts therein in order to invalidate a search warrant regular on its face. See also Elms v. State, 114 Texas Cr. Rep 642, 26 S.W. 2d 211; Jenkins v. State, 116 Texas Cr. Rep. 374, 32 S.W. 2d 848; Piper v. State, 34 S.W. 2d 283; Pond v. State, 119 Texas Cr. Rep. 306, 45 S.W. 2d 962; Harkey v. State, 142 Texas Cr. Rep. 32, 150 S.W. 2d 808.

The same rule applies in civil cases. See Coleman County Country Club v. State, 236 S.W. 2d 558, writ refused.

Aside from the question of consent and the sufficiency of the search warrant, the testimony of appellant and his witness W. B. Sampson was to the effect that the club in evidence was the club which was under the bed in the Sampson home.

We remain convinced that reversible error is not shown in the admission of the club in evidence.

We have re-examined the record in the light of appellant’s motion and remain convinced that the issue of the voluntary character of the confession was for the jury and that the confession was not inadmissible as a matter of law.

Appellant’s motion for rehearing' is overruled.