Fowler v. State

GRAVES, Presiding Judge. Appellant was convicted for the unlawful possession for the purpose of sale of intoxicating liquors in Lubbock County, a dry area; and upon a trial before a jury he was awarded a penalty of a fine of $250.00, from which he appeals. The testimony shows that appellant was the proprietor of a cafe in the city of Lubbock, located at 616 13th Street; and under a search warrant two officers searched the same and found 13 pints of liquor in a drawer therein. The main contention in this appeal is that the search warrant was illegal and improperly issued by the magistrate signing the same, as shown by appellant’s Bill of Exception No. 1. We take from the preamble in said bill a resume of the reasons assigned therein as follows: “At the time of the search, no affidavit for search warrant was on file with the Justice, and the case had not then been docketed.” We find from the facts set out in said bill that it is claimed that the warrant was issued about 9:00 o’clock P.M., by the justice of the peace while at his home in the city of Lubbock and not at his office in the Lubbock County Courthouse; that two officers appeared at his home at such time and presented to him three copies of a search warrant, which was then signed and sworn to by them before said justice of the peace at his home; that he then delivered the three copies of this warrant which evidently also contained the affidavit for its issuance; that they executed the warrant by searching the cafe of the appellant and finding therein 13 pints of whisky. [272] The burden of this objection seems to be that the affidavit was made outside of the office of the justice of the peace and at his home. In other words, it is the claim of the appellant that the same was not docketed and placed on the docket of the justice of the peace at that time; that “it was not until after the search warrant was executed that a copy of the warrant was left with the said Justice of the Peace, and not until after the search was the cause docketed on the records of the Justice of the Peace.” We think that when the affidavit was made before the justice of the peace at his home, it was just as binding as though it had been made at his office. We also think that at the time the justice of the peace signed the search warrant at his home it was as valid as though he had been sitting in his office. It seems that the justice of the peace is not limited in the performance of his functions to his office alone; otherewise many of his acts, of course, would become invalid. It is noted from the bill itself that “with the exception of the matters herein complained of and hereinafter shown, the search warrant is admittedly sufficient to authorize a search of the premises described.” Under our holding, the justice of the peace had a right to issue this search warrant at his home, and we think the bill of exception should be overruled. In Cornelius on Search and Seizure, (2nd Edition) page 587, sec. 276, it is said: “But, on the other hand, fact that no record was made of the action on the part of the magistrate finding that probable cause existed for the issuance of a search warrant, did not effect the validity of the search. It has been held that to constitute a filing of an affidavit it is not necessary that a record of the fact in a docket must be entered before a warrant can be lawfully issued. The court said in one case: “ ‘All that the statute or the Constitution requires is that an affidavit particularly describing the place to be searched and the persons or things to be searched for shall first be filed; not that the magistrate shall have recorded the fact of such filing in his docket before a search warrant issues * * * if with the purpose to file it the affidavit was deposited with the officer charged with the duty to receive and place it on file, and was [273] received and retained by him for that purpose, in the office where the law requires such filing, it was sufficiently filed.’ ” In Bill of Exceptions No. 2 it is claimed that the state’s witnesses were confused as to the number of the house on 13th Street where the appellant’s cafe was located. One witness seems to think it was 816 13th Street, while the other witness testified that the number of the house was 616 13th Street. This matter was a question for the jury to decide as to what the number of his cafe was. All the testimony showed that the place searched was the cafe of the appellant and was under his charge and control. Bill of Exceptions No. 3 is ruled by what we have said as to Bill No. 2. We think that Bill of Exception No. 4 is without merit. The judgment of the trial court is accordingly affirmed.