Schwartz v. State

HAWKINS, Judge.

— Conviction is for unlawfully possessing a still and equipment for manufacturing intoxicating liquor, punishment being three years in the penitentiary.

Under authority of a search warrant officers went to the residence of appellant in Randall county and found a still in operation in one of the rooms of the house. In an adjoining room they found five barrels of mash, five half-gallon jars of whisky, and a twenty gallon keg containing four or five gallons of whisky. Appellant was not present at the time the search was made, but as the officers were returning to town after the search they met him going towards his home.

There are six bills of exception in the record, all of which in one way or another attack the sufficiency of the affidavit and search warrant issued thereunder, and the receipt in evidence of the testimony of the officers detailing the result of the search.

One objection urged was that there was a fatal variance between the description of the property to be searched as contained in the affidavit and in the warrant. In the affidavit the property is described as follows: “That there is situated in Randall County, Texas, a certain house and premises located, situated and described as follows: A farm house and premises, including all out houses, barns, and any buildings adjacent and appurtenant thereto, located about nineteen miles south of the City of Amarillo, which said City is in Potter County, Texas, and about 2 miles south and one half mile west of Stone School House, in Randall County, Texas, said house, buildings and premises to be searched being occupied and under the charge and control of J. R. Schwartz, survey No. 30, I. & G. N. — 6, and that J. R. Schwartz and other persons to affiants unknown, has charge of said house and premises.”

The. warrant followed exactly the description contained in the affidavit with the exception that where the affidavit used the language “Survey No. 30, I. & G. N. — 6,” the warrant used the language “Survey No. 30, Block No. 6, I. & G. N.” In view of the other description of the property to be searched we think the variance pointed out, if it be a variance, is inconsequential.

Another objection urged was that the description of the property was insufficient. We find no merit in this contention. See Watson v. State, 110 Texas Crim. Rep., 199, 7 S. W. (2d) 586, 9 S. W. (2d) 265, Hernandez v. State, 109 Texas Crim. Rep., 246, 4 S. W. (2d) 82, and Branch v. State, 116 Texas Crim. Rep., 205, 33 S. W. (2d) 1069, Boone v. State, 114 Texas Crim. Rep., 653, 26 S. W. (2d) 655.

The affidavit was also assailed because the identity of the persons giving the information to affiants was not disclosed, and because they were not described in any way. It was averred in the affidavit that in said house intoxicating liquor was manufactured and sold. It was dated October 23, 1930, and signed by Chas. Bebout and Bob Barnett.

The affidavit contains further averments as follows:

“And each of said affiants further deposes and says that their knowledge of the truth of the above and foregoing statements is based upon the following facts, viz:

“That affiant Bob Barnett, says that on this the 23d day of October, a man who affiant believes to be a credible person, told affiant that there is now a still and apparatus used for the manufacture of whisky on said above described premises; and that the said J. R. Schwartz has been and is now manufacturing whisky on said premises in large quantities; that whisky is now being transported away from said house and premises for the purpose of sale.

“Affiant Chas. Bebout, says that on this the 23d day of October, 1930, he was informed by a credible person, whose occupation is a minister of the gospel, that whisky is now being manufactured on above described premises, and that there is now a still and apparatus in actual operation on said premises, and that whisky is now being manufactured, and is being transported away from said premises; that on the 22d day of October, 1930, he received a letter through the .mail stating that whisky is being manufactured on said premises by the said J. R. Schwartz.”

The sufficiency of the affidavit is supported by the following authorities: Rozner v. State, 109 Texas Crim. Rep., 127, 3 S. W. (2d) 441; Harris v. State, 112 Texas Crim. Rep., 219, 15 S. W. (2d) 1048; Ruhmann v. State, 113 Texas Crim. Rep., 527, 22 S. W. (2d) 1069; Villareal v. State, 113 Texas Crim. Rep., 442, 21 S. W. (2d) 739; Montgomery v. State, 115 Texas Crim. Rep., 469, 31 S. W. (2d) 440; Boone v. State, 114 Texas Crim. Rep., 653, 26 S. W. (2d) 655; Loftin v. State, 116 Texas Crim. Rep., 244, 33 S. W. (2d) 1071; Davis v. State, 117 Texas Crim. Rep., 167, 36 S. W. (2d) 500.

We find no merit in any of the contentions urged by appellant.

The judgment is affirmed.

Affirmed.