Parrack v. State

228 S.W.2d 859, 154 Tex. Crim. 532, 1950 Tex. Crim. App. LEXIS 2141

• Court: Court of Criminal Appeals of Texas
• Decided: March 1, 1950
• Docket: 24683
• Status: Published

Opinions

GRAVES, Judge.

Appellant was convicted of the illegal possession of intoxicating liquor in a dry area and by the jury fined $100.00 and sentenced to 90 days in jail.

There is only one bill, of exception herein, and that relates to the search of appellant’s one-room house in such county under a search warrant. The complained of portion of such warrant, among other things, is the description of the premises contained therein as follows:

“About a one room frame building, located at the back of Jack’s Welding Shop, which is located at No. 625 Oak Street in Abilene, Taylor County, Texas, together with all automobiles, out buildings and premises pertaining thereto.”

The occupants of such premises against whom the search warrant was directed were denominated as follows:

“Jack Mitcham and or party or parties whose name or names and whose description or descriptions are unknown to affiants.”

We think that from this description as a one-room frame building located at the back of Jack’s Welding Shop at 625 Oak Street, one could go to a certain place, which it seems the officers did, and there found 12 half-pints of whisky. It was shown that appellant was in possession of such house and that he was renting the same from Jack Mitcham. We think that this description was sufficient to direct the officers to the house in which the liquor was found. Ordinarily, the sufficiency of a description of the premises is a matter for the court. See Corley v. State, 150 Tex. Cr. R. 107, 199 S. W. (2d) 782.

Complaint is also made because such warrant merely stated that the occupancy of said one-room house was by “Jack Mitcham and or party or parties whose name or names and whose description or descriptions are unknown to affiants”, which was claimed to be inadequate. Such a description was held to be sufficient in Elms v. State, 114 Tex. Cr. R. 642, 26 S. W. (2d) 211; Rathert v. State, 126 Tex. Cr. R. 484, 72 S. W. (2d) 276; Naulls v. State, 115 Tex. Cr. R. 44, 27 S. W. (2d) 180; Northam v. State, 125 Tex. Cr. R. 162, 66 S. W. (2d) 692; Hoppe v. State, 122 Tex. Cr. R. 440, 55 S. W. (2d) 1053; Siragusa v. State, 122 Tex. Cr. R. 263, 54 S. W. (2d) 1053.

The testimony herein shows that neither the name nor any description of the occupant of this house was known to the signers of the affidavit for the search warrant save that it was white people. The statute provides that if the name of the person whose premises are desired to be searched is unknown and a description of such person is unknown, then it is sufficient to so allege. See Art. 310, Vernon’s Ann. Tex. C. C. P.

Complaint is also made because of the fact that the affidavit contains the statement that “the affiants have this day received information from credible citizens of Taylor County, Texas, that an alcoholic beverage containing alcohol in excess of one half of one per cent by volume is being kept, stored, possessed for the purpose of sale, and sold on, at and from the above described premises in violation of law, and we, the affiants, have reason to believe and do believe that the above is true and correct.”

The testimony shows the finding of whisky at such place, and we ate impressed with the fact that we judicially know that whisky is an alcoholic beverage and contains in excess of one half of one per cent by volume of alcohol. Article 666-3a, Vernon’s Ann. P. C., defines “Alcoholic Beverage” as “alcohol and any beverage containing more than one-half of one per cent of alcohol by volume which is capable of use for beverage purposes, either alone or when diluted.”

We see no error shown herein, and the judgment will therefore be affirmed.

Hawkins, P. J., absent.