Appellant files an able motion for rehearing, setting forth his belief that we erred in our affirmance *Page 130 for the reason that the facts stated in the affidavit for search warrant were not sufficient to justify the issuance of such warrant; and further, that said affidavit failed to show the private residence of appellant to be a place where intoxicating liquor was made or sold in violation of law, and hence the warrant issued contrary to the provisions of Art. 691, P. C. Other objections were made but are not argued.
The affidavit for search warrant in this case states that the affiants have good reason to believe and do believe that Mat Logan is engaged in the unlawful sale of intoxicating liquor in his residence, situated, etc., etc.; that the basis for their affidavit and belief is that he was seen by the sheriff, while previously watching said residence, attempting to deliver to another party what was supposed to be intoxicating liquor. The jurat to this affidavit was in the usual form, "Sworn to and subscribed before me this the 11th day of September, 1926. C. S. Yates, J. P., Precinct No. 1, Franklin County, Texas." Examination of the affidavit shows that it contains the statement that appellant is engaged in the unlawful sale of intoxicating liquors in his residence. This we think sufficient. Said affidavit also states that it is sought upon the fact that the sheriff had previously seen appellant attempting to deliver at his residence liquor deemed intoxicating. We are not prepared to say that this recitation of facts is not sufficient to justify the magistrate, or that same did not amount to the probable cause required by our Constitution, and which is defined in Landa v. Obert, 45 Tex. 539 [45 Tex. 539], as 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.
We are not inclined to agree with appellant's proposition that the facts in this case do not sufficiently support the verdict. Appellant was unquestionably in possession of a quantity of liquor. He was seen with it in his possession and tried to make his escape with same, as set forth in our original opinion. The only question seemingly in any doubt, under the testimony, would be whether he possessed it for the purpose of sale. This fact the jury has resolved against him.
The motion for rehearing will be overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.