Appellant urges that we were in error in holding that his bill of exception number five did not present error in view of Article 319, C. C. P., 1925 Revision, which provides that an officer executing a search warrant "shall give notice of his purpose." It is not necessary here to discuss what would be the effect of a failure of such officer to give notice of his purpose to search because the bill in question does not raise that point. There is no question but that the officer *Page 228 had a search warrant and made his return thereon, and that it had been lost. When he undertook to testify as to the result of his search the objection interposed as shown by said bill was that the search warrant was the best evidence and none had been introduced; that the witness had no right to search without a warrant and the State should therefore prove the issuance, service and loss of the same before the witness could be permitted to testify. In qualifying the bill the court says it was shown that a warrant authorizing the search had been issued, and in the judgment of the court sufficient evidence had been presented showing its loss. The point now raised by appellant was not made at the time of trial. It is not affirmatively shown in said bill that the officer did not give notice of his purpose. It does appear from the statement of facts that appellant was away from home at the time the officers reached his premises and did not return for some two hours. A young man by the name of Faulkner was the only person on the premises. The officers did inform Faulkner of their purpose to make the search and he told them he did not have anything to do with it but to go ahead. The search had been made before appellant returned. We find no foundation either in the bill or the statement of facts for the complaint now made.
The motion for rehearing is overruled.
Overruled.