Appellant's motion for rehearing proceeds on the theory that our former opinion in effect held that the search warrant under which the officers acted was predicated on an insufficient affidavit; that if the evidence of the officers be discarded the testimony given by appellant was not sufficient to make out a case against him, and that the principle announced in the recent cases of Kelsey v. State, (No. 11188, date of opinion March 21, 1928) and King v. State, (No. 11193, date of opinion March 28, 1928) should be controlling here. In our original opinion we did not consider whether the affidavit for the search warrant was sufficient but based the disposition of the case on the sole proposition that appellant's own evidence made out the case against him. Our conclusion in that regard may be debatable as pointed out in appellant's motion. The evidence of the officers does unquestionably show such a state of facts as authorized the verdict. Whether such evidence was properly admitted depends upon the sufficiency of the affidavit for the search warrant. It is no longer an open question with this court that an affidavit which on its face discloses that it was made upon "information and belief" is not sufficient unless the facts or information upon which the belief is based be set out in the affidavit in order that the magistrate may for himself be the judge whether "probable cause" exists for the warrant to issue. Chapin v. State, 107 Tex. Crim. 477, *Page 93 296 S.W. 1095. For collation of other cases following Chapin see Sutton v. State, 300 S.W. 639.)
The affidavit in the present case — deleting portions not thought to be pertinent — reads as follows:
"The State of Texas, County of Denton: We do solemnly swear that there is situated in said county and state a certain room, house, building * * * described as follows: to-wit: the private residence, buildings and premises occupied by John Ware, same being situated about five miles northeast of Aubrey, Texas, and about two miles northwest of the Spring Hill School house. The said room, house, building, * * * place John Ware has charge thereof. That in said room, house, building * * * place is kept, sold * * * in violation of law intoxicating liquor of the following description, to-wit: whiskey and other intoxicating liquors, better description of same being to affiants unknown. * * * And that the owner of said intoxicating liquors is John Ware, and we do further solemnly swear that the said John Ware on or about the 22d day of December, A.D. 1926, in said county and state, did keep and was interested in keeping said above described premises, building, room * * * place to be used for the purpose of storing * * * selling * * * intoxicating liquor in violation of law. Wherefore we ask that a warrant to search the above described place and seize said intoxicating liquor * * * be forthwith issued, etc."
The affidavit is signed by two affiants and sworn to before the county judge who issued the warrant.
The premises and property to be searched appear to have been sufficiently described.
It will be observed that the affidavit does not on its face disclose that the averments therein are based "upon information and belief." Affiants state in positive terms that appellant kept and sold in the described premises intoxicating liquor in violation of the law. Where the ultimate fact is stated as a fact, and not merely as upon "information and belief" it has been held sufficient to justify the magistrate in his conclusion that "probable cause" existed for issuing the warrant provided those things stated as facts would, if true, furnish such "probable cause." Neal v. Commonwealth, 203 Ky. 353, 262 S.W. 287; Mattingly v. Commonwealth, 197 Ky. 583,247 S.W. 939; Caudill v. Commonwealth, 198 Ky. 695, 249 S.W. 1005; Walters v. Commonwealth, 199 Ky. 182, 250 S.W. 839; Moore v. Commonwealth, 200 Ky. 419, 255 S.W. 77; State v. Shaffer (Wash.) 207 P. 229; State v. Smith (Okla.) 235 P. 273 *Page 94 . The reason for such holding appears to be very clearly and convincingly stated by the Kentucky court in Neal's case (supra) in the following language:
"There is a manifest and material difference in the statement by an affiant that he believes there is whisky in a described place and his statement he knows there is whisky there. In the one instance he avoids and in the other he assumes responsibility for the truth of his averment, and it is this difference that marks the dividing line between the cases. In the first case the affidavit does not furnish the magistrate any basis whatever for determining if probable cause exists. Nor does it afford the accused the basis for action against his accuser for redress if probable cause does not exist. But, if the affiant swears that facts constituting probable cause exist, or that he knows they exist, the magistrate has reasonable grounds for believing same to exist or not dependent upon whether or not in his judgment the affiant is worthy of belief. And the accused may proceed against his accuser for damages resultant from such an accusation, if false."
We quote from Veeder v. U.S., 252 Fed. 414, 164 Cow. C. A., 338:
"The inviolability of the accused's home is to be determined by the facts, not by rumor, suspicion, or guesswork. If the facts afford the legal basis for the search warrant, the accused must take the consequences. But equally there must be consequences for the accuser to face. If the sworn accusation is based on fiction, the accuser must take the chance of punishment, for perjury. Hence the necessity of a sworn statement of facts, because one cannot be convicted of perjury for having a belief, though the belief be utterly unfounded in fact and law."
We therefore hold that the affidavit being positive in its terms was a sufficient basis for the issuance of the warrant, and the search thereunder was legal and the evidence obtained thereby was properly admitted upon the trial.
Appellant presents another proposition. He developed on examination of one of the affiants that while he had sworn in the affidavit to an unequivocal existence of certain things as facts that in truth his affidavit was based upon information and rumors relative to the matter. Upon this being ascertained appellant objected to the witness testifying to the discoveries made by virtue of the search. In other words appellant sought upon the trial to go behind the affidavit, and although the affidavit was sufficient upon its face to show "probable cause" and justify the magistrate in issuing the warrant *Page 95 appellant contends that if in truth the affiants were not in possession of facts or information which amounted to "probable cause" evidence obtained under the search warrant should be excluded although the magistrate acted properly in issuing the warrant upon a valid affidavit. In Rozner v. State (Tex. Cr. App.) 3 S.W.2d 441, will be found an announcement at variance with appellant's contention, but the question was not discussed at length. From the statement found in Cornelius on Search Seizure, Sec. 94, pp. 295, 296, it appears that it is only where the issuing magistrate fails to draw the necessary legal conclusions from the facts stated in the affidavit that his action in issuing the warrant may be reviewed. (See authorities collated under said Sec. 94.) We quote from Corpus Juris, Vol. 33, p. 676:
"Where an affidavit, upon which a warrant was issued, contains positive averments of facts justifying the issuance of the warrant, its validity is not affected by proof aliunde that the facts therein positively stated were in reality stated upon information and belief."
The point is decided against appellant's contention in Bowen v. Commonwealth, 199 Ky. 400, 251 S.W. 625, in the following language:
"Whatever criticism might be made of an affiant who states in an affidavit as a positive fact that of which he only has information, it must be admitted that the search warrant issued upon such an affidavit is a valid search warrant and is ample protection, not only to the officer who issues it, but to the officer who may execute it. And it must likewise be admitted that, as the search warrant was valid on its face and issued upon an affidavit sufficient on its face, the evidence procured by the execution of such a valid search warrant cannot be said to be incompetent because of a subsequent attack upon the truth of the affidavit upon which it was based. At the time it was executed the paper itself and the supporting affidavit were perfectly regular, and purported to give to the officer executing it authority to make the search of appellant's premises, and the evidence thus procured may be used against him, although the affidavit states on its face as a fact that of which the affiant only had information. Any other rule would encourage unauthorized attacks upon the correctness or truth of statements contained in such affidavits, and would bring about interminable confusion and disorder in determining the competency of evidence procured under search warrants valid upon their faces. Walters v. Commonwealth, 199 Ky. 182,250 S.W. 839." *Page 96
To the same effect is English v. Commonwealth, 200 Ky. 103,252 S.W. 121. In State v. Shaffer (Wash.) 207 P. 229, it is said:
"Some question is made with reference to the regularity of the search warrant, but there is no merit in the appellant's position in this. The warrant was issued upon the affidavit of the sheriff which states, as the appellant says in his brief in positive terms, that intoxicating liquor was being bought, sold, manufactured, and given away at the home of the appellant. Upon the trial on cross examination the sheriff testified that he did not know positively that there was any liquor in the house, but that does not militate against the regularity or validity of the warrant."
See also People v. Czckay, 218 Mich. 660, 188 N.W. 376. To our minds any other rule would not only bring about confusion and disorder in determining the competency of evidence procured under search warrants valid upon their face and predicated upon affidavits from which the magistrate could determine that "probable cause" was shown, but in many cases the issue of defendant's guilt or innocence would be lost sight of in an inquiry whether affiants had committed perjury in making the affidavit upon which the search warrant was based, although upon its face the affidavit was sufficient and perfectly regular. In such case it seems that orderly trials must postpone investigation of affiants' good faith to another time and tribunal. See Bird v. State (No. 11553, this day decided).
Appellant's motion for rehearing is overruled.
Overruled.
ON SECOND MOTION FOR REHEARING.