DocketNumber: No. 10594.
Citation Numbers: 298 S.W. 290, 107 Tex. Crim. 521, 1927 Tex. Crim. App. LEXIS 487
Judges: Hawkins, Morrow, Lattimore
Filed Date: 2/9/1927
Status: Precedential
Modified Date: 10/19/2024
Adverting to bills of exceptions Nos. 4, 5, 6 and 7, appellant insists that a reversal of the judgment should result.
Before permitting the searching officer to disclose to the jury the result of the search, the court heard testimony to the effect that Judge French, a Justice of the Peace, had issued a search warrant upon an affidavit made by the witness. The form prescribed for searching for liquor was used, but the references as to liquor were erased and in lieu thereof the stolen property was described. The premises of the appellant were also described. We understand from the qualification of bill No. 4 that the court, in the absence of the jury, heard evidence touching the loss of the search warrant, and upon such evidence as that mentioned above, permitted the officer to testify to the result of the search. Against the receipt of the evidence of the result of the search, it was urged that there was no proper search warrant issued by a proper and legal affidavit and application.
In bill No. 5 it appears that the sheriff testified that he made a search of the appellant's premises and had a search warrant at the time. The witness was permitted to testify as to the contents of the search warrant. Against the receipt of this testimony objection was urged that there was no testimony showing that the search warrant contained the essential statutory requirements to make it a valid and legal search warrant. Touching what the witness testified the contents of the warrant *Page 525 to be, the bill is silent. It cannot, therefore, be justly said that the bill shows that the search warrant did not contain the statutory essentials. In connection with this bill, the court makes a similar statement to that touching bill No. 4, wherein it is declared that in the absence of the jury the witness testified that the search warrant was lost out of his pocket somewhere near Truby.
In bill No. 6 it appears that the witness O'Bar participated in the search and had possession of the search warrant. While upon the witness stand, he was asked the following question:
"Was the search warrant in the usual and ordinary form of search warrants, to the best of your recollection?"
To this the witness replied in the affirmative. It is made to appear from the court's qualification that the search warrant had been lost.
In bill No. 7 it is made to appear that the witness O'Bar was permitted to answer the following question with reference to the application for the search warrant:
"Was that application filled out in the ordinary and usual manner of applications for search warrants?"
The witness answered: "Yes, sir; I think so."
In the qualification of this bill it is shown that French, the Justice of the Peace, who issued the search warrant, testified that upon a search of his office he had failed to find the affidavit upon which the search warrant was issued, but that such affidavit was made by the officer. It is a serious question whether under the facts in the present case the burden was upon the state to show that the application for the search warrant complied with the forms of law. See Smoot v. State,
"The admissibility of evidence to prove a lost document is a question exclusively for the court; as a preliminary to such admission, the prior existence and genuineness of the lost document must be established, and that it cannot be produced by the party seeking to prove its contents."
The loss and diligence must be shown to the satisfaction of the trial courts. See Wharton's Crim. Ev., Secs. 207 to 211. In the present instance, both the warrant and the affidavit are shown to have been lost. This showing was made upon evidence heard by the trial judge in the absence of the jury. The evidence heard on the predicate is not brought forward in any of the bills of exceptions complaining of the sufficiency of the predicate, and in the absence of the evidence which was heard by the trial judge upon which he based his decision that the predicate was sufficient, it seems obvious that this court is not in a position to review or overturn his conclusion. See Underhill's Crim. Ev., 3d Ed., Sec. 94. Where the predicate is such as to authorize the resort to oral proof of the contents of the written instrument which has been lost, generally speaking, it is sufficient that the substance be proved. See Cyc. of Law Proc., Vol. 25, p. 1627; Gonzales v. State,
From an examination of the statement of facts, we learn that the substance of the search warrant and the affidavit as comporting with the statutory requirements was vouched for by the testimony of the witness French, a Justice of the Peace, and Whaley, a deputy sheriff, this being testimony other than that to which the bills of exceptions relate. In addition, it was shown without controversy that the appellant consented to the search of his premises. This being true, the necessity for a search warrant was obviated. See Hall v. State,
The motion is overruled.
Overruled.