Stevens v. State

262 S.W.2d 716, 159 Tex. Crim. 247, 1953 Tex. Crim. App. LEXIS 1862

• Court: Court of Criminal Appeals of Texas
• Decided: December 9, 1953
• Docket: 26512
• Status: Published

Opinions

DAVIDSON, Judge.

This is a conviction for robbery, with punishment assessed at five years in the penitentiary.

Harber operated, for the owner, a filling station in that part of the city of Amarillo which lies in Randall County. About one o’clock, a. m., on August 27, 1952, three masked and armed men robbed Harber, taking from the filling station the cash register, which contained about $40 in money, including $12 in nickels wrapped in six rolls of $2 each. Harber was unable to identify any of the robbers.

By virtue of a search warrant, officers searched the residence of the appellant on the second day after the robbery and found in a dresser drawer in “the east bed room” thereof six rolls of nickels. Appellant was not at home at the time of the search.

The witnesses for the state were unable to make positive identification of those rolls of nickels as having been taken in the robbery; they did testify, however, to facts showing similarity in color and folding of the wrappings which would authorize a jury to conclude that the six rolls of nickels so found were those which were taken in the robbery.

The finding of the six rolls of nickels in appellant’s residence was a fact of material importance in the establishment of the state’s case.

The admissibility of that testimony was challenged by appellant, who urges that the search warrant under which officers made the search was invalid, the chief grounds of objection being that the affidavit for and upon which the search warrant was based was made upon information and belief and did not evidence probable cause for the issuance of the warrant.

The affidavit.reads as follows:

“The State of Texas ) (Initialed at top with pen and

“County of Randall ( ink) : ‘Mrs. W.J.F. 11-24-52’

“I, Homer Ewton, do solemnly swear that on or about the 26th day of August, A. D. 1952, in said County and State, James M. Stevens did fraudulently take from the possession of Marvin Harber, without his consent with intent to deprive him of the value thereof, and to appropriate the same to his own use, certain personal property in the care, custody and control of the said Marvin Harber, to-wit: — one cash register together with $40.00 in lawful current money contained therein, and I have cause to believe and do believe that the said property is now concealed by James M. Stevens in a certain house situated in said County and State, and described as follows:

“Residence at 4210 Gables Street, Amarillo, Randall County, Texas.

“My belief is based on the following facts:

“Evidence that James M. Stevens together with other persons committed the offense of armed robbery on the said Marvin Harber on the date stated above and by such robbery took the above described property from his possession without his consent.

“Wherefore, I ask that a warrant to search for and seize the said property be forthwith issued in accordance with the law in such cases provided.

“S/Homer Ewton.

“Sworn to and subscribed before me by Homer Ewton on this the 29th day of August, A. D. 1952.

“S/Mrs. W. J. Flesher, Justice of the Peace, Precinct No. 4, Randall County, Texas.”

It may be said that the affidavit is composed of three separate divisions: (First) The affidavit contains the direct and positive statement that appellant committed the crime of theft in stealing a cash register and $40 from Harber. (Second) The affiant expresses the belief that the stolen property was concealed by appellant in a certain residence in Amarillo. Note is to be taken of the fact that it is not alleged that it was appellant’s residence or that' appellant was either the owner, occupant, or person in charge of said residence, nor is the name of the owner, occupant, or person in possession given or stated to be unknown. (Third) The place where the stolen property is alleged ot be concealed is shown as being upon information and belief, only. No facts are stated by which the magistrate might have concluded that probable cause there existed to authorize and warrant the issuance of the search, warrant.

While it is true that affiant states that the information and belief referred to are based upon evidence that Stevens and others took- the property in a robbery, thése facts do not constitute probable cause for belief that such property Was concealed in the residence described in the affidavit. Such expression, therefore, does not constitute a statement of facts evidencing probable cause authorizing the issuance of the search warrant to search the premises named.

Our Constitution, by Art. 1, Sec. 9, prohibits the issuance of a search warrant upon information and belief. See, also, Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095.

A warrant to search a private residence must be based upon an affidavit evidencing probable cause for its issuance. McLennan v. State, 109 Tex. Cr. R. 83, 3 S. W. 2d 447.

The receipt in evidence of the property found in the home of the accused as the result of illegal search requires a reversal of the conviction. Art. 727a, V. A. C. C. P.; Davis v. State, 113 Tex. Cr. R. 421, 21 S. W. 2d 509.

In the light of the special charges that were given, we are unable to agree that the law requiring corroboration of accomplice testimony was not properly given in the charge to the jury.

For the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the court.