In his motion for rehearing appellant insists we were in error in stating in the original opinion that the witness Caperton, who testified for appellant, gave substantially the same testimony as did the searching officers. If such statement is not correct it does not follow that the judgment should be reversed. The officers operated under a search warrant which appears to meet the requirements of the law. The house to be searched was sufficiently described in the affidavit and warrant. It was averred in said instruments that said place was occupied by Hugh Caperton and Hub Bowers; that it was a place where alcoholic beverages were unlawfully possessed, sold, manufactured, kept and stored in violation of the law; that the affiants had received information from reliable citizens of Cooper that whisky was being sold at said place; that Hugh Caperton and Hub Bowers had openly admitted the keeping and selling of illicit liquor at said place. The search warrant concludes: "Witness my hand this 11 day of March, A.D. 19__. Signed H. C. McEntire, Justice of the Peace, Precinct No. 3, Delta County, Texas." The further indorsement appears on the warrant: "Issued this 11th day of March, A.D. 1938. H. C. McEntire, Justice of the Peace, Precinct No. 3." Looking to the indorsement last quoted, we think it is clear that appellant's contention that the search warrant is insufficient in that it fails to show the date upon which it was issued cannot be sustained.
Appellant makes the further contention that the testimony *Page 390 of the searching officers should not have been received in view of the fact that the justice of the peace testified that he did not know the contents of the affidavit at the time he issued the warrant. We do not decide whether such an attack on the warrant was authorized, but hold that, in view of the testimony heard by the judge, he was warranted in concluding that the search warrant was regularly issued. We quote from the testimony of one of the affiants as follows:
"Yes, sir, that is my signature. H. W. Wilson signed that search warrant. I have seen this particular instrument before. It is a search warrant to search Hugh Caperton and Hub Bowers. It shows that Mr. Wilson and I made this affidavit on the 11th day of March, 1938. I recall going to Judge McEntire's house for that purpose. We went there to execute and procure a number of search warrants. We was sworn and signed the affidavit before him. We discussed with him the information before we signed them. This was discussed before we signed and swore to it."
We are constrained to hold that the affidavit and warrant based thereon were sufficient. Hence the trial court committed no error in admitting the testimony of the officers touching the result of the search.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.