Fine v. State

Mb. Chief Justice Green

delivered the opinion of the Court.

The defendants were convicted of keeping a gambling house, each fined $500, and given a jail sentence of six months. They have appealed in error to this Court. •

The greater part of the record is devoted to a controversy with reference to the admissibility of evidence procured under a search warrant. Acting under a search warrant, which the defendants assail, the sheriff of Hamilton County entered a room in a warehouse where the defendant J. M. Fine, or Jake Fine, had stored a large quantity of gambling equipment, numbers tickets, tickets in the nature, of lottery tickets based on the scores in baseball games, and other gambling paraphernalia. The boxes in which this gambling paraphernalia was packed appear to have been marked with Jake Fine’s name and the address following was that of- the gambling house which defendants were charged with operating.

We are prevented' from considering the validity of the search and the admissibility of the evidence secured thereunder because the search warrant is not included in the bill of exceptions.

A search warrant is ordinarily introduced to justify the admission of evidence, secured thereunder. Objections to the search warrant go to the admissibility of the evidence and the search warrant indeed is a part of the' evidence without which the remainder might be inadmissible. An objection to a search warrant in this connection is but an objection to evidence and we cannot reverse the ruling of the trial judge on evidence unless that evidence is properly preserved in a bill of exceptions. We have frequently so held.

In this case a paper purporting to be the search warrant appears in the transcript. Not being included in the bill of exceptions, it cannot be looked to since it is not authenticated by the signature of the trial judge. Battier v. State, 114 Tenn. 563, 86 S. W. 711; Nashville R. & Lt. Co. v. Marlin, 117 Tenn. 698, 99 S. W. 367. is insisted that by reason of Section 11912 of the Code, which requires the magistrate issuing the search warrant to return it together with the affidavits and return “to the court having power to inquire into the offense” the search warrant became a part of the technical record herein. This is a mistake. The search warrant is a pleading in another case, the search warrant case. It was nothing but evidence offered in the criminal case, not a part of the pleadings in the criminal case. It is merely a paper filed in another case brought into the criminal prosecution as evidence.

The assignments with reference to the admissibility of evidence obtained under the search warrant must accordingly be overruled.

The facts of the case and other assignments of error are considered in a memorandum opinion heretofore filed. This discussion involves nothing of particular interest and is not included in the published -opinion.

Affirmed.