Conviction for manufacturing intoxicating liquor, punishment three years in the penitentiary.
The facts need not be set out further than to say that same amply show appellant to be guilty.
There are two bills of exception, each presenting substantially the same objection made to the testimony of two witnesses. The *Page 128 testimony of said witnesses present in detail the results of a search made by them of appellant's house, outhouses, etc. When each witness took the stand appellant asked to examine him upon his voir dire, and after such examination, and based on the testimony of the witness, objection was made to the testimony because of the fact that the affidavit for search warrant was insufficient, and, therefore, under the holding of this court the warrant itself was illegal and the evidence discovered by means thereof should be rejected. The affidavit in question, after stating that same was made on information and belief of the two affiants, proceeds as follows:
"Affiants' information is based on the fact that they have been informed that about ten days or two weeks past, that the said Anton Rozner had about fifteen gallons of whiskey in his smokehouse on said premises; further, that heretofore the affiant L. L. Blaylock, has searched said premises for liquor and found same on the same under circumstances that showed that said Anton Rozner was unlawfully interested in said liquor manufacture and possession. Also found a still on said premises."
We are of opinion that neither bill shows error. Said affidavit contains a statement of facts which was for the determination of the magistrate to whom the affidavit was presented and before whom it was made. Said magistrate having judicially determined that the facts stated in the affidavit were sufficient, and it appearing to this court from an examination of same that the affidavit was not entirely devoid of facts, it is our opinion that the discretion confided in the magistrate in such cases was not exceeded, and that the trial court properly declined to reject the testimony found under the warrant issued upon such affidavit. In other words, this court is of the opinion that when an affidavit presented to a magistrate upon which he is asked to issue a search warrant, contains a statement of the facts to which the affiants make oath, that the sufficience of the facts thus stated is primarily for the magistrate, and that he has a discretion in the premises, and that his action in determining such facts sufficient to form the basis for the issuance of the warrant will not be reviewed by this court unless it appears to us that there has been an abuse of the discretion thus confided to the magistrate, and that no facts appear in such affidavit. Each affidavit in the bills of exception under discussion contains facts, and we are of opinion the magistrate was well within his discretion in holding same to form a sufficient basis for the issuance of a search warrant. So believing, and that the evidence *Page 129 found by the officers was correctly received, and that same amply support the verdict, the judgment of conviction will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.