
    SMITH v. STATE.
    No. 12706.
    Court of Criminal Appeals of Texas.
    March 5, 1930.
    For original opinion, see 23 S.W.(2d) 387.
    A. L. Curtis, of Belton, and McClellan & Cross, of Gatesville, for appellant.
    Tom L. Robinson, Dist. Atty., of Gatesville, and A. A. Dawson, State’s Atty., of Austin, for'the State.
   MORROW, P. J..

In view of a defect in the record, the merits of the case could not be passed upon on the original hearing. The record having been perfected, the appellant’s second motion for rehearing is entitled to consideration.

In a very forceful argument appended to the motion, it is asserted that the validity of the search warrant issued upon the affidavit discussed and partly quoted in the original opinion is in conflict with previous decisions upon the same subject, notably Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095, 1097; Yeeder v. United States (O. C. A.) 252 P. 414. Upon the questions raised, this court has, in previous decisions recently rendered, expressed its views in language as definite as it is capable of making it, and must of necessity content itself with reference to the eases mentioned. It was there Stated that belief on undisclosed information does not show probable cause for a search as that term is used in the state and federal Constitutions. In a quotation from one of the federal decisions in Chapin’s Case, supra, it is said: “ ‘If the sworn accusation is based on fiction, the accuser -must take the chance of punishment for perjury. Hence the necessity of a sworn statement of facts, because one cannot be convicted of perjury for having a belief, though the belief be utterly unfounded in fact and law.’ Veeder v. United States, 252 F. 414, 164 C. C. A. 338.”

It is the contention of the appellant in substance that the affidavit for the search warrant, to be valid, must contain not only ithe information which would show “probable cause,” but it must .also disclose the source of the information. Such a construction has been rejected by this court in several cases. In Rozner’s Case, 109 Tex. Cr. R. 127, 3 S.W.(2d) 441, 442, it is said of the affidavit: “It recites specifically that affiants had been informed that about 10 days or 2 weeks past appellant had 15 gallons of whisky in his smokehouse.”

This was held to be a sufficient compliance' with the rule stated above.

In Ruhmann’s Case (Tex. Cr. App.) 22 S.W.(2d) 1069,1070, the most recent one published upon the subject, it was said: “If we understand appellant’s contention, it is that such averment states no fact, but gives only information which has reached the affiants, without naming the informant, and is only hearsay. Appellant seems to assume that (probable cause’ for the issuance of a search warrant cannot arise fom hearsay. We think this is a mistaken view. The definition of probable cause, as found in Banda v. Obert, 45 Tex. 539, which is approved in Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095, and is in substance the same as other definitions sanctioned by the courts and text-writers, reads as follows: ‘A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.’ ”

For further elaboration of the views of the court, reference is made to the report of the case last mentioned above. The conclusion there stated may be thus summarized: One who swears that he has certain detailed and disclosed information which in fact he does not possess perjures himself. If the information detailed to the magistrate is sufficient, if ■ true, to constitute probable cause, it is for him to determine whether he believes it to be true, and the issuance of the warrant (which implies the belief of the magistrate in the truth of the affiant’s statement) is supported by the affidavit.

The “motion is overruled.  