
    CHORN v. STATE.
    (No. 10594.)
    Court of Criminal Appeals of Texas.
    Feb. 9, 1927.
    Rehearing Denied June 22, 1927.
    Application to File Second Motion Refused Oct. 12, 1927.
    1. Criminal law &wkey;l 119(2) — Bill of exceptions held not to show error In exhibiting to jury goods alleged to have been stolen.
    In prosecution for burglary, bill of exceptions based on objection to bringing goods into courtroom, which showed that district attorney said he was going to identify them by witness, presumably one who was testifying, and that judge stated if they were not identified he would instruct jury not to consider them for any purpose, without further showing or recital of failure to identify them, showed no error.
    2. Criminal law &wkey;l 169(2) — Permitting accomplice to testify that certain goods were, to best of his knowledge, taken by him and defendant, held not error in view of later positive identification.
    In prosecution for burglary, permitting accomplice to testify that to best of his knowledge certain articles had been taken by him and defendant from burglarized store was not error, in view of later positive identification of goods.
    3. Criminal law <&wkey;394, 402(I) — Admitting proof of contents of affidavit and search warrant which were lost and as to goods found on search held proper.
    In prosecution for burglary, admitting testimony of contents of affidavit for search warrant and search warrant which had been lost, and testimony as to goods found on search under warrant, was proper.
    4. Criminal law &wkey;4!9, 420(10), 1169(2) — Admitting hearsay testimony that defendant lived at house where stolen goods were found held error, but not cause for reversal in view of other testimony.
    In prosecution for burglary, admitting testimony that defendant lived at house where stolen goods were found, based on what others had told witness, was error, but not cause for reversal in view of fact that defendant’s residence at such house was established beyond question by other testimony, and of fact that it was not contested issue.
    On Motion for Rehearing.
    5. Criminal law <&wkey;394 — 'Testimony that lost affidavit for warrant to search for stolen goods was based on affidavit for liquor search warrant with changes held to render evidence obtained by search admissible.
    In prosecution for burglary, where affidavit for search warrant was lost, testimony in absence of jury that justice of peace had issued warrant to search for stolen goods on blank used in liquor cases, in which references to liquor were erased and in lieu thereof stolen property was described, as were also defendant’s premises, rendered admissible evidence as to goods obtained by search.
    6. Criminal law <&wkey;l 120(8) — Bill of exceptions silent as to testimony concerning contents of lost search warrant held not to show warrant illegal.
    In prosecution for burglary, bill of exceptions to admission of sheriff’s oral testimony as to contents of lost search warrant, not stating what witness testified as to contents thereof, did not show search warrant illegal.
    7. Criminal law &wkey;>403 — Admitting oral testimony that lost application for search warrant was in usual form held not error.
    In prosecution for burglary, where affidavit for search warrant, under which goods offered in evidence were found, had been lost, admitting oral testimony that application was- filled out in ordinary and usual manner was not error.
    8. Criminal law ¡&wkey;402(l)— On proper showing of diligence, oral testimony as to contents of lost affidavit and search warrant held admissible.
    On proper predicate showing loss of affidavit and search warrant and diligence as to their recovery to satisfaction of trial court, proof of their contents could be made by oral testimony.
    9. Criminal law <3&wkey;l 120(8) — Admitting parol evidence as to contents of lost affidavit and search warrant will not be held error, where bills of exception did not present evidence as to loss and diligence.
    In absence from bill of exceptions of evidence showing loss of affidavit and search warrant and diligence to find them, trial court’s conclusion that parol .evidence of contents was admissible will not be held error on appeal.
    10. Criminal law <&wkey;403 — Where predicate authorizes parol proof of contents of lost written instruments, proof of substance is generally sufficient.
    Where predicate authorizes resort to oral proof of contents of lost written instruments, it generally is sufficient that substance be proved.
    11. .Searches and seizures <g=>7(27)— On consent to search of premises, search warrant is not necessary.
    On consent to search of premises, necessity for search warrant is obviatéd.
    On Application for Leave to File Second Motion for Rehearing.
    12. Searches and seizures <&wkey;>7(27) — Evidence held to show defendant gave consent to search of premises.
    In prosecution for burglary, evidence held to show that defendant gave consent to search of premises on which stolen goods were found, obviating necessity of search warrant.
    Appeal from District Court, Jones County; Bruce W. Bryant, Judge.
    G. E. Chorn was convicted of burglary, and he appeals.
    Affirmed.
    
      Brooks- & Robinson, of Anson, for appellant.
    Sam D. Stinson, State’s -4tty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary, the punishment being two years in the penitentiary.

M. T. McCoy owned and operated a general mercantile establishment, and on the night of February 3, 1926, the house was burglarized and a quantity of goods taken therefrom. A few days later officers obtained a search warrant and searched a house occupied by appellant and one Tucker. As a result of the search, practically all .the .stolen goods were recovered and identified by the owner through cost marks on them. Tucker testified that he and appellant burglarized the store and stole the merchandise.

Complaint is made in bill of exception No. 1 because the officers brought into the courtroom the merchandise alleged to have been stolen from McCoy’s store and placed them in view of the jury, the objection being that no proper predicate had been laid authorizing the production of the goods before the jury. The bill fails to state what witness was then being examined, but upon objection being made the district attorney said, “I am going to identify it by this witness.” We infer he had reference to the party then on the witness stand. The learned trial judge told appellant’s counsel if said property whs not identified he would instruct the jury not to consider it for any purpose. The bill stops here. There is no recital that the witness failed to identify it. The bill shows no error.

The matter complained of in bills 2 and 3 is because the state was permitted to prove by Tucker, the accomplice, that certain articles of merchandise exhibited to him were, to the best of his knowledge, goods taken by him and appellant from the burglarized store. There was no error in this. The goods were later positively identified by McCoy.

Complaint appears in bill of exception No. 4 because the sheriff was permitted to testify that he searched the house occupied by appellant and Tucker, after obtaining a search warrant, and found certain goods which he identified; the objection being that it had not been shown that the search was upon a warrant properly obtained. Bills 5, 6, 7, and 9 complain that error was committed by the court in permitting witnesses to testify as to the contents of the affidavit and warrant; the objection being that they, themselves, were the best evidence. The bills are qualified by the court showing that the justice of the peace who took the affidavit had testified that he had searched his office for it without avail, and the sheriff had testified that the warrant had been lost out of his pocket. It being shown that both instruments were lost, it was permissible to prove their contents.

J. S. French testified that appellant lived at the house which was searched and where the stolen goods were found; he said he did not know of his own personal knowledge that appellant lived there, but based his statement in that regard on what others told him. Objection was interposed because the witness was stating only a conclusion based upon hearsay. This evidence ought not to have been admitted, but its erroneous reception does not demand a reversal. The court’s qualification shows that the witness, did testify that he had seen both appellant and Tucker at the particular premises. That appellant did live there seems to have been established beyond question by other testimony. It was not a contested issue.

The judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

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 fhe 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 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 ashed 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 piade 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, 160 Ga. 744, 128 S. E. 909, 41 A. L. R. 1533. There is much reason and authority for the claim that under our statute, where the state shows that the searching officer was possessed of a search warrant to search the premises of the accused for the purpose for which the search was made, which warrant purported to have been issued by competent authority and contained the recitals requisite to show compliance with the legal requirements, that evidence acquired as a result of the search would be admissible unless its receipt was opposed, not only by objection, but by proof that the supporting affidavit was not in accord with the law. In other words, the magistrate having issued a warrant showing on its face to be in accord with the duty as a public officer, there would be a prima facie presumption of its validity. See Burtch v. Zuech, 200 Iowa, 49, 202 N. W. 542, 39 A. L. R. 1349; Cornelius on Search and Seizure, § 332, and authorities cited in note 84.

However, in the present instance, the court having determined upon proof, in the absence of the jury, that the affidavit was lost, and that there was sufficient predicate for ' the introduction of secondary evidence, the testimony contained in the several bills under discussion, if admissible, was sufficient to meet the objection that there was an absence of showing of proper affidavit, as a basis for the issuance of the search warrant. The contents of both the search warrant and the affidavit being shown to have been lost and therefore unavailable, proof of their contents would be met by parol evidence upon a proper predicate showing diligence. From Wharton’s Orim. Ev. (10th Ed.) § 206, we quote:

“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 Orim Ev. §§ 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 Orim. Ev. (3d Ed.) § 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, 31 Tex. Cr. R. 508, 21 S. W. 253; Dudley v. State (Tex. Cr. App.) 58 S. W. 111.

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, 105 Tex. Cr. R. 365, 288 S. W. 202. We also think the bills show no error. Even if that were doubtful, however, in view of the other matters to which we have just adverted, this court would not be authorized to reverse the judgment.

The motion is overruled.

On Application for Leave to File Second Motion for Rehearing.

LATTIMORE, J.

The matters complained of in appellant’s request for leave to file second motion for rehearing have been considered heretofore, and nothing is brought forward which has been misstated or overlooked. Appellant does complain upon the ground that in our opinion on rehearing, as he says, we incorrectly stated that he gave his consent to the search of his premises. We quote from the testimony of T. P. Hudson, which is not controverted by any other witness in the case:

“The defendant told me it didn’t make any difference about a search warrant, but I read it to them. He gave me his permission to search the place; I asked him if he wanted me to read it to him, he said, ‘No, just go ahead and search it.’ ”

Leave to file second motion for rehearing is refused. 
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