Under an indictment charging Rufus Cagle and Frank Cagle, jointly, with the offense of keeping and exhibiting a policy game, under the provisions of Art. 619, P. C., Rufus Cagle was separately tried, convicted, and his punishment assessed at confinement in the state penitentiary for a term of two years.
The term "policy game" is not defined by statute. By judicial interpretation, it is the game of betting upon the appearance of numbers, the bettor betting against the keeper that certain numbers selected by the bettor will appear out of a list of numbers, usually from 1 to 78, drawn or to be drawn by the keeper, by chance or otherwise.
It was the State's contention that Frank Cagle and Rufus Cagle were jointly operating, that is, keeping and exhibiting, a policy game known as "Big Four." *Page 358
It appear that there were two drawings of numbers each day, except Sunday: one in the forenoon and the other in the afternoon. The closing time for the taking of bets was about noon and 6:00 P. M., respectively. Bets were made through "writers," there being about forty-seven so engaged in writing for the "Big Four." Eleven of these "writers" testified for the State upon the trial of this case. A canvas bag, with a number thereon, was furnished each writer. This number identified the writer with the operators of the game. Each writer would contact the individual bettor and would receive from him the numbers selected and the amount bet on that selection. Bets could be made upon the appearance of the numbers, in several different ways, the odds to the winner being governed by the particular method employed. The writer would make an original of the selection made by the bettor, which he placed in the canvas bag, together with the amount so bet, after deducting twenty per cent thereof for himself. A copy of the selection was retained by the bettor and the writer. Thus the keeper of the game, the writer, and the bettor were enabled, after the list of numbers had been drawn and published, to determine whether the bettor had won or lost. About closing time for each drawing, the writer would "close his books," that is, he would stop taking bets for that drawing, and would deliver his canvas bag to, what we will term, the "collector," who, in this case, was one Ivory Slater. After taking up the bag, Slater would, within a short time, return, to the writer, a canvas bag, in which was a printed copy of the numbers drawn for the period just closed. With this list, the writer would then make payment to those bettors who had won. The amount so paid out by the writer was deducted by him from receipts of subsequent bets. No writer knew the identity of, or had contact with, the keepers or exhibitors of the game. All instructions and communications between them were made by and through notes or memoranda placed in the canvas bag from time to time. Among such communications transpiring were that the writers were directed to furnish their social security numbers, and were given the name and telephone number of a lawyer to call in the event they were arrested, and who would furnish bail for them.
The foregoing facts are shown, primarily, by the testimony of the eleven writers who testified upon the trial of the case, and who referred to their duties as selling lottery tickets, and who would have testified that they were engaged in selling lottery tickets. *Page 359
The "Big Four" had been thus operating in Harris County for more than a year prior to this prosecution.
Appellant insists that such facts do not show keeping or exhibiting a policy game; and that, if any offense were shown, it was that of a lottery, and for which the prosecution should have been instituted.
With this contention we are not in accord. It is true that the numbers may have been drawn by chance, and that other elements of the offense of a lottery may have been shown to exist; yet the facts also showed all the constituent elements of a policy game. Schwarz v. State, 124 S.W.2d 392,136 Tex. Crim. 260; Hill v. State, 158 S.W.2d 810; Canizares v. State, 157 S.W.2d 385; Adams v. New York, 192 U.S. 585, 48 L. Ed. 575, 24 S. Ct. 372. It must be remembered that it is the province of the State to carve out of, and to prosecute for, any offense growing out of a single transaction, and that it does not lie with the accused to direct the State in that selection. Having concluded that the facts show that the offense of keeping and exhibiting a policy game was committed by someone, it remains to be determined whether the facts show that the appellant, Rufus Cagle, was criminally connected therewith; and as to this, these additional facts appear:
Several weeks prior to January 20, 1942, detectives of the City of Houston began a systematic trailing and watch of the acts, conduct, and movements of Frank Cagle, Rufus Cagle, and Ivory Slater; as a result of which they were enabled to determine that each day, about the closing time or deadline for the taking of bets by the writers, Rufus Cagle would go to a house situated on "Lillian Road" and would leave said house, with a suitcase, which he would deliver to Frank Cagle, and, at the same time, would receive, from Frank Cagle, a suitcase; that, about said closing time, Frank Cagle would contact Ivory Slater, and would receive from him a suitcase; and that, thereafter, Frank Cagle would deliver, to Ivory Slater, the suitcase, or one similar, that Frank Cagle had received from Rufus Cagle.
On the night of January 20, 1942, peace officers, by virtue of a search warrant, made a search of: the "Lillian Road" house, the residence of Frank Cagle, and the residence of Rufus Cagle (the appellant).
The "Lillian Road" house although having some household furniture in some of the rooms, did not appear to be occupied *Page 360 by anyone as a place of residence. In this house, they found: a hand printing press; sheets of paper of the same kind and size as those upon which the numbers were printed and delivered to the writers; two grips, or suitcases, containing manila envelopes similar to those used by some of the writers; canvas bags, with numbers thereon, and identified by some of the writers as having been assigned to them; and complete equipment for the drawing and printing of the numbers on the printed lists.
In Frank Cagle's home, they found: duplicate copies of "Employer's Tax Return" to the government, showing that Frank Cagle had made returns of taxable wages paid by him, as employer, to his employees, which listed, among others, the names of the eleven writers who testified upon the trial, together with those of Ivory Slater and Rufus Cagle. Something like $9,400.00 in cash was found in a small safe.
In Rufus Cagle's home, they found, in the attic thereof, a well-equipped office, access to which was gained by means of a movable stairway. In that office, they found: a large quantity of slips of paper, which were identified by the writers as being the originals written by them in taking bets for the "Big Four," and which slips of paper showed the numbers selected by the bettors, and which were, by the writers, placed in the canvas bag assigned to each of them; several of the canvas bags bearing the numbers, and which were identified by the writers as having been assigned to and used by them in reporting the bets; a suitcase similar to that the officers had seen passed between Ivory Slater, Rufus Cagle, and Frank Cagle; a canvas-back book, in which were listed the names of various people, including the names of the eleven writers, opposite each of which was a social security number and amounts shown in figures; also another book, corresponding, in many respects, with the canvas-back book.
In addition to the testimony showing the result of the searches mentioned, there were introduced in evidence the monthly returns made by Frank Cagle to the Texas Unemployment Compensation Commission, showing the employees' names and the numbers assigned and the amounts paid to his employees. The names of the eleven writers and that of Ivory Slater were included therein.
The foregoing constitutes a statement of the facts upon which the State relied to connect Frank Cagle and Rufus Cagle with the crime charged. *Page 361
The appellant did not testify as a witness in his own behalf, nor did he offer any affirmative defensive testimony.
The facts are sufficient to show — and a reasonable deduction to draw therefrom is — that it was appellant's job or duty, in connection with the unlawful enterprise: to furnish his home as the headquarters and office therefor; to go to the "Lillian Road" house, and there to draw the numbers and to print the tickets showing the winning numbers, and to get them into the hands of Frank Cagle, who in turn would deliver them to Ivory Slater, by whom they would be distributed to the writers; and, after Frank Cagle had received, from Ivory Slater, the suitcase containing the canvas bags with the money so bet and the slips of paper showing the selections of the bettors, he would deliver same to Rufus Cagle, who would carry them to the attic of his residence, for entry and checking.
The conclusion is reached that the jury was warranted in concluding that appellant was a principal to the commission of the offense charged in that, at the time of the commission of the crime, he was charged in doing his part in furtherance of the common design. Having so concluded, it follows also that the trial court was warranted in submitting the case to the jury under the law of principals. Appellant's contrary contention is overruled. The trial court gave the following instruction to the jury:
"5. You are charged that the game of betting on numbers or combinations of numbers appearing on the tickets or slips of paper described and admitted in evidence constitutes a policy game."
This charge was objected to as being, among other things, upon the weight of the evidence. The effect of the charge was to tell the jury that the evidence in this case showed a policy game.
As we have pointed out, the facts were undisputed; and, as a matter of law, such facts did show the keeping and exhibiting of a policy game by someone. It follows that the trial court was authorized to so construe the facts, under the rule that the question at issue was one of law for the court's determination. Queen v. State, 246 S.W. 384, 93 Tex. Crim. 173; Hegman v. State, 227 S.W. 954, 88 Tex.Crim. R.; Prendergast v. State, 57 S.W. 850, 41 Tex.Crim. R.; Martin v. State, 162 S.W.2d 722; Watson v. State, 205 S.W. 662,84 Tex. Crim. 115. *Page 362
We come now to a discussion of the most difficult question in the case, and that is the sufficiency of the affidavit and search warrant to authorize the search of appellant's home, and the introduction in evidence of the result of the search. The affidavit and search warrant read as follows:
"STATE OF TEXAS ) COUNTY OF HARRIS )
"Before me, the undersigned authority, on this day personally appeared the undersigned affiants who, being by me duly sworn, upon oath state THAT a certain place in Harris County, Texas, described as 2102 Brannard St. a red brick, one story house inthe city of Houston, Texas, and being the premises under the control and in charge of unknown parties whose names anddescriptions are known to affiants is a place whereimplements are kept for the purpose of aiding in the commission of offenses as defined by the Penal Code of the State of Texas, to-wit: The establishment and operation of a lottery, and thekeeping and exhibiting of a policy game.
"E. M. Collins,
"T. B. Morris, Affiants
"SUBSCRIBED AND SWORN TO BY THE ABOVE NAMED AFFIANTS this the20 day of January, A.D. 1942.
"W. C. Ragan, Justice of the Peace
"Precinct Number One Harris County, Texas."
The warrant issued under and by virtue of said affidavit reads as follows:
"STATE OF TEXAS ) COUNTY OF HARRIS )
"TO THE SHERIFF OR ANY CONSTABLE OF HARRIS COUNTY, — GREETINGS:
"WHEREAS, a complaint on oath and in writing, in accordance with law, has this day been made before me alleging that the premises described as 2102 Branard Street, Red Brick, one storyhouse in the City of Houston, Texas and being the premises under the control of and in the charge of unknown parties,whose names and descriptions are unknown to the affiants, as a place where implements are kept for the purpose of aiding in the commission of offenses, as defined by the Penal Code of the *Page 363 State of Texas, to-wit: The establishment and operation of a lottery, and the keeping and exhibiting of a policy game.
"You are therefore hereby commanded to enter immediately and search the above described premises for implements used in aiding in the commission of offenses, as defined by the Penal Code of the State of Texas, to-wit: The establishment and operation of a lottery, and the keeping and exhibiting of apolicy game and to take possession of same, and you are further commanded to arrest the said unknown parties, whose names anddescriptions are unknown to affiants alleged to be the person in charge of said premises, and to arrest all other parties found in said premises or making their escape therefrom.
"HEREIN FAIL NOT, but have you then and there, this warrant within three days from its issuance with your return thereon, showing how you have executed the same.
"WITNESS my hand this the 20th day of January, A.D. 1942.
"W. C. Ragan (signed)
"Justice of the Peace Precinct
"Number One, Harris County, Texas."
It will be noted that the affidavit was made, and the warrant was issued, under the authority of Title 6 of the Code of Criminal Procedure, and particularly under Arts. 304, 312, and 316 thereof, wherein provision is made for the issuance of warrants to search for "implements kept for the purpose of being used in the commission of any designated offense." (Art. 304, C. C. P.); and "When it is alleged that implements are kept at a place for the purpose of aiding in the commission of offenses, __________." (Art. 312, C. C. P.).
Appellant's attacks on the affidavit and search warrant are: (a) The statutes relied upon do not authorize the issuance of warrants to search for implements used or kept for the purpose of aiding in the commission of the offense of keeping a policy game. (b) If the statutes relied upon do authorize the issuance of such a search warrant, then the affidavit and warrant are insufficient in that they do not describe the implements or kind of implements kept, or alleged to have been kept, for the purpose of aiding in the commission of the offense of keeping and exhibiting a policy game, as expressly required by the statutes relied upon. *Page 364
Obviously, therefore, a construction of Title 6, C. C. P., and especially Arts. 304, 305, 312, and 316 thereof, together with Art. 633, P. C., is called for.1
If we understand appellant's position, it is that, under the provisions of Title 6, C. C. P., and especially under the Articles mentioned, the implements and the only implements for which a search warrant may there issue are those described in Sec. 3 of Art. 305, C. C. P., same being implements for use in forgery and counterfeiting; that special provision is made for the issuance of warrants to search for implements used in gaming and kindred offenses, including the keeping of a lottery and a policy game, by the provisions of Art. 633, P. C.; and that, Art. 633, P. C., being a special statute, it controls over the general statute incorporated under Title 6, C. C. P.
Note is to be taken of the fact that Title 6, C. C. P., was a part of the Original Code of 1856, and that same has remained practically unchanged, while Art. 633, P. C., is a part of the gaming laws passed in 1907.
In so far as the articles mentioned relate to the question of search and seizure, they are in pari materia, and are, therefore, to be construed together, so as to give effect to each; and in the event of a conflict, the special statute will control over *Page 365 the general statute upon that subject. Colley v. State,158 S.W.2d 1014, 143 Tex.Crim. R.; Thomas v. State, 91 S.W.2d 716, 128 Tex.Crim. R.; and authorities cited in 34 Texas Digest Statutes, page 477, Secs. 205-207, incl.
The rule stated has application here in two particulars; these are: (a) in determining the effect of Sec. 3 of Art. 305, C. C. P., wherein a search warrant may issue "To search places where it is alleged implements are kept for use in forging or counterfeiting," in relation to Arts. 304 and 312, C. C. P., wherein a warrant may issue to search a suspected place where it is alleged there are "implements kept for the purpose of being used in the commission of any designated offense." Under Art. 304, C. C. P.); and to search any place suspected of being one where "implements are kept for the purpose of aiding in the commission of offenses __________" (under Art. 312, C. C. P.); and (b) in determining the effect of the Articles mentioned in relation to Art. 633, P. C.
If Arts. 304 and 305, C. C. P., be construed together, there might be some foundation for the claim that the special enumerations set out in Art. 305, C. C. P., control over, and constitute a description of, the things authorized to be searched for under Art. 304, C. C. P., as being descriptive of the provision "any designated offense," as contained in that Article; yet in no event could said Article 305, C. C. P., be construed as placing a limitation upon the express provisions of Art. 312, C. C. P., authorizing the issuance of a warrant to search for implements *Page 366 kept for the purpose of aiding in the commission of offenses, that is, offenses generally.
When the several Articles comprising Title 6, C. C. P., are construed as a whole, no doubt exists in our minds but that the Legislature intended to authorize the issuance of warrants to search for implements kept for the purpose of being used in, or aiding in, the commission of offenses generally, as denounced by the Penal Code of this State. A contrary conclusion would, of necessity, render meaningless the express provisions of Art. 312, C. C. P.
Appellant argues, with much force, that the Articles of Title 6, C. C. P., noted cannot be given the broad construction as announced by us, because of the enactments, by the legislature, from time to time, of special legislation authorizing the issuance of search warrants in connection with certain specific offenses, such as intoxicating liquors (Art. 691 of the Penal Code of 1925), intoxicating liquors under the present Texas Liquor Control Act (Art. 666-20, P. C.), narcotics (Sec. 16 of Art. 725b, P. C.), and gaming (Art. 633, P. C.), which special legislation authorized the issuance of warrants to search not only for the specific property, or contraband articles, but also for the implements used in connection with the commission of offenses relating thereto. *Page 367
Appellant cites the cases of Greenway v. State, 131 Tex. Crim. 620,101 S.W.2d 569, and Rone v. State, 132 Tex. Crim. 23,101 S.W.2d 1017. These cases arose out of the following situation: Upon the passage of the so-called "Dean Law," being Chapter 7 of the Penal Code of 1925, the Legislature, by Art. 691 thereof, expressly provided for the issuance of search warrants thereunder. When the Dean Law was repealed by the enactment of our present "Texas Liquor Control Act," in 1935, no provision was made therein for the issuance of search warrants. Thereafter, the question arose as to whether or not a warrant could be issued to search in connection with violations of that Act. In the cases above noted, we held that no statutory authority existed for the issuance of a warrant to search for intoxicating liquors, and that the authority for the issuance of such a warrant expired with the repeal of Art. 691, P. C., of 1925.
Appellant insists that the effect of such holding is that the provisions of Title 6, C. C. P., did not authorize the issuance of a search warrant in connection with offenses or violations of the law generally, and that Title 6, C. C. P., is, therefore, restricted in its application only to the matters expressly enumerated therein.
In the Greenway and Rone cases, supra, the search sought to be made was for intoxicating liquor; that is, for the contraband article. The question of the right of a warrant to issue to search for "implements" used or to be used in violating the liquor laws was not involved nor was it raised in such case. The provisions of Title 6, C. C. P., do not authorize the issuance of a warrant to search for intoxicating liquor. It follows that the holding in the Greenway and Rone cases, supra, furnishes no authority for the contention that Title 6, C. C. P., does not authorize the issuance of search warrants for "implements" used or to be used in violating the law generally, such question not being involved therein.
It next becomes material to determine whether Art. 633, P. C., is in conflict with the provisions of Title 6, C. C. P., in so far as same relate to the issuance of a search warrant to search for implements used or to be used in gaming, lottery, and policy game cases, so as to exclude the application of said Title 6, C. C. P., to such cases.
Art. 633, P. C., upon its face, provides: (a) for the issuance of a search warrant when an affidavit is made that gaming, *Page 368 betting or wagering, as prohibited by law, is being conducted in the place desired to be searched; (b) that the warrant issued under such affidavit authorizes the officer to search the place described; and (c) that, if the officer executing the warrant determines that the place so searched is a gambling house, that is, a "place where people resort for the purpose of gaming, betting or wagering" (Art. 631, P. C.), the officer may take, and is directed to take, possession of the gambling equipment found therein.
The construction to be placed upon said statute is that, in so far as gambling equipment is concerned, the right to take possession thereof is limited, first, to a determination, by the officer executing the search warrant, that the place searched is a gambling house. It follows that, under said statute, unless the place is found to be a gambling house, the right to seize the gambling equipment so found does not exist. Art. 633, P. C., thus limits a search for equipment used in committing any offense of gaming to a search of a gambling house, and, as so limited, does not authorize the search for any implements used in the commission of offenses, as we have herein determined exist, under the provisions of Title 6, C. C. P. The conclusion is reached that Art. 633, P. C., is not susceptible of the construction sought to be here applied by the appellant. There may be some provisions of said article subject to question but they are not here involved. What we hold is that Art. 633, P. C., does not furnish the exclusive remedy for the issuance of search warrants to search for implements used in committing the offense of keeping and exhibiting a policy game.
We come now to a consideration of the question of the introduction of the testimony showing the result of the search of appellant's home. As to this, two primary questions are presented; these are:
(a) Is the description of the implements as contained in the affidavit and search warrant sufficient?
(b) If the description be sufficient to authorize a search for implements used in committing the offense charged, did it authorize the seizure, and the introduction in evidence, of the books, slips of paper, and canvas bags so found?
These questions are discussed in the order named.
Art. I, Sec. 9, Constitution of Texas, and Arts. 4, 312 and 316, C. C. P., require that a search warrant, to be sufficient, *Page 369 must describe the place to be searched and the property to be seized. The primary reason for this is to prevent speculation on the part of the officer executing the warrant as to what property may be seized by him, and to prevent an exploratory search merely for evidence.
As to when property sought to be seized is sufficiently described in the warrant, it appears that the general rule is as follows:
"The description of the property to be seized must vary according to whether the identity of the property or its character is a matter of concern * * * where the purpose of the search is to find a specific property, it should be so particularly described as to preclude the possibility of seizing any other; on the other hand, if the purpose be to seize non-specified property, but any property of a specified character which by reason of its character and of the place where and the circumstances under which it may be found, if found at all, would be illicit, a description save as to such character, place and circumstances, is unnecessary and ordinarily impossible." Cornelius on The Law of Search and Seizure, pp. 331-332, sec. 122; State v. Nejin, 140 La. 793,74 So. 103; Frost v. People, 61 N.E. 1054, 193 Ill. 635, 86 Am. St. Rep. 352; 24 Rawle C. L. 714.
The rule stated is deemed applicable in the instant case. Here the property desired to be searched for and seized was implements used in aiding in the commission of the offense of keeping and exhibiting a policy game, and was not property of a specific character or which could be described by a specific name or designation. The definition of, and the elements necessary to constitute, the offense of keeping and exhibiting a policy game are so broad that the implements used in committing that offense must, of necessity, depend upon the character thereof, together with the place and circumstances under which they are found. It follows that the description of the implements as contained in the affidavit and search warrant was sufficiently definite to authorize a search therefor, limed, however, by the wording contained in the search warrant, to such implements as are used in committing the offense charged.
The search warrant being sufficient to authorize the search of appellant's home for implements used in aiding in the commission of the offense of keeping and exhibiting a policy game, the remaining question is whether the officers executing the warrant were authorized to seize and to take possession of the *Page 370 property found therein — especially the books, canvas bags, and private papers offered in evidence by the State. Objections were made to the introduction of such testimony and same are preserved here by proper bills of exception.
In the final analysis, the fact situation here presented is:
Officers, armed with a search warrant authorizing them to search appellant's home for implements used in aiding in the commission of the offense of keeping and exhibiting a policy game, made a search thereof in his absence, but in the presence of members of his family, and of others; they seized and took possession of, among other things, certain writings, which, upon their face, were nothing more nor less than slips of paper, with numbers written thereon in pencil. On the face of such slips there was nothing to show to what the numbers thereon related, nor the use or purpose for which they were made or possessed. Of the other property seized, that is, the canvas bags and the canvas-back book containing names, numbers and amounts, it is also true that there was nothing on the face thereof that would, in any manner, show or indicate that they were being used in keeping and exhibiting a policy game. It was by other testimony that such property was shown to be connected with the offense charged. This other testimony, which was mainly that of the writers, did show that the articles so seized were used in committing, and were a part of the conspiracy to commit, the offense of keeping and exhibiting a policy game; and, by reason thereof, the articles so seized became and were very material to the State's case. So, the question here presented is whether or not the search warrant authorized the seizure of the property mentioned and its use in evidence by the State.
The courts, both state and federal, have been very zealous in guarding and protecting the security of a man's home against unreasonable searches and seizures, as guaranteed in our Bill of Rights (Art. I, Sec. 9, Constitution of Texas) and in the 4th Amendment to the Federal Constitution. A liberal construction has been adopted to preserve that right.
The Legislature of this State, in order to further protect and to safeguard these guarantees, has enacted special legislation upon the subject (Art. 727a, Vernon's C. C. P.), which reads as follows:
"No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution of the United States of America, *Page 371 shall be admitted in evidence against the accused on the trial of any criminal case."
Express authority for the passage of such statute exists under the rule that it is within the power of the State to prescribe the evidence which is to be received in the courts of its jurisdiction. Fong Yue Ting v. United States, 149 U.S. 698, 37 L. ed. 905, 13 S. Ct. 1016. The effect of said Art. 727a, C. C. P., is that, under the circumstances here presented, if the testimony showing the result of the search was obtained in violation of the Constitution or laws of this State, or of the 4th or 5th Amendment to the Federal Constitution, its receipt in evidence is prohibited. Such being true, the decisions of the Supreme Court of the United States upon the question here presented should be first consulted; and, where applicable and controlling, they should be followed. We think that the case of Gouled v. United States, 255 U.S. 298, 65 L. ed. 647, 41 S.Ct., 261, is controlling. As we construe the holding in that case, it is that, under the 4th Amendment to the Federal Constitution, search warrants "may not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they (search warrants) may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful and provides that it may be taken."
Implements used for gaming, including implements used in keeping and exhibiting a policy game, fall within the class for which search warrants may issue.
The slips of paper with the pencil memoranda thereon, the canvas bags, the suitcases, policy slips and printing press were, under the facts here presented, implements used in keeping and exhibiting this particular policy game. All articles found appear to be included in this classification save the one hereafter considered.
In Adams v. New York, 192 U.S. 585, 24 Sup.Ct. Rep. 372, 48 L. ed. 575, is found the following statement from the Supreme Court of the United States:
"The right to issue a search warrant to discover stolen property or the means of committing crimes, is too long established *Page 372 to require discussion. The right of seizure of lottery tickets and gambling devices, such as policy slips, under such warrants, requires no argument to sustain it at this day. But the contention is that, if in the search for the instruments of crime, other papers are taken, the same may not be given in evidence."
The test is not the nature of the property seized but whether such property was by the accused used in perpetrating the offense of keeping and exhibiting a policy game. United States v. Thomson, 129 A. L. R. 1291. If the property was so used or was usable for such purpose, it was admissible in evidence. However, if property was seized which was not used or usable in committing the offense but was only of evidential value in establishing accused's guilt of the crime charged, such evidence should, upon objection thereto, have been excluded. Upon page 1296 of 129 A. L. R. appears the following headnote:
"Comment Note — Illustrations of distinction, as regards search and seizure, between papers or other articles which merely furnish evidence of crime, and the actual instrumentalities of crime."
Under this note will be found numerous cases illustrating the distinction mentioned.
We conclude that no error was committed by the trial court in admitting evidence regarding such articles, papers and means as appear to have been used or usable in securing bets and otherwise developing and operating the unlawful enterprise of running a policy game as the same was conducted in the particular instance now before us.
Bill of Exception No. 11 reveals that one of the officers who executed the search warrant testified, over objection, that, in the attic of appellant's home, the officers found a canvas-back book which contained the names and social security numbers of employees, among others, of Rufus Cagle (appellant) and the "writers" who testified.
We are at a complete loss to discover how it would be possible for a book containing social security numbers of purported employees to be used in conducting a policy game, or to be classed as an implement for such purpose.
However, it was a rather cogent evidential circumstance against appellant that there was found in his house a book containing *Page 373 the social security numbers of the "writers" heretofore mentioned, who had testified that, in the canvas bags delivered to them by one Ivory Slater, there was a written request that they furnish their social security numbers; and especially significant in view of the fact that, although none of said "writers" came in personal touch with Frank Cagle, yet the evidence showed that he made returns to the Texas Unemployment Compensation Commission showing, among other employees, the eleven "writers," Ivory Slater and appellant, with the numbers assigned, and the amounts paid to each. Finding the book containing the said social security numbers in appellant's home tended to tie him into the enterprise with which Frank Cagle, Ivory Slater and the "writers" were connected. Being solely of evidential value against appellant, but wholly disconnected with the operation and development of the policy game, the evidence mentioned should have been excluded.
The prosecution suggests that, because evidence went into the record, without objection, that Frank Cagle made the return to the Texas Unemployment Compensation Commission regarding the social security matters of the "writers" and other employees, the admission in evidence of the finding of the book containing practically the same information was not harmfully erroneous. It must be borne in mind that Rufus Cagle (appellant) was on trial — not Frank Cagle, the party who made the reports.
For the error in not excluding the evidence mentioned, the judgment is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by a majority of the Court.
F. L. HAWKINS, Presiding Judge.
TOM L. BEAUCHAMP, Judge.
1 Article 304, C. C. P. "Search Warrant"
"A 'search warrant' is a written order, issued by a magistrate, and directed to a peace officer, commanding him to search for personal property, and to seize the same and bring it before such magistrate; or it is a like written order, commanding a peace officer to search a suspected place where it is alleged stolen property is commonly concealed, or implements kept for the purpose of being used in the commission of any designated offense."
Art. 305, C. C. P. "When it may issue
"A search warrant may be issued:
"1. To discover property acquired by theft or in any other manner which makes its acquisition a penal offense.
"2. To search suspected places where it is alleged property so illegally acquired is commonly kept or concealed.
"3. To search places where it is alleged implements are kept for use in forging or counterfeiting.
"4. To search places where it is alleged arms or munitions are kept or prepared for the purpose of insurrection or riot.
"5. To seize and bring before a magistrate any such property, implements, arms and munitions."
Art. 312, C. C. P. "Application to search other places.
"A warrant to search any place suspected to be one where stolen goods are commonly concealed or where implements are kept for the purpose of aiding in the commission of offenses may be issued by a magistrate on written sworn complaint, setting forth:
"1. A description of the place suspected.
"A description of the kind of property alleged to be commonly concealed at such place, or the kind of the implements kept.
"3. The name, if known, of the person supposed to have charge of such place, when it is alleged that it is under the charge of any one.
"4. When it is alleged that implements are kept at a place for a purpose of aiding in the commission of offenses, the particular offense for which such implements are designed must be set forth."
Art. 316, C. C. P. "To search suspected place
"A warrant to search a suspected place shall be sufficient if it contain the following requisites:
"1. That it run in the name of "The State of Texas."
"2. That it describe with accuracy the place suspected.
"3. That it describe, as near as may be, the property supposed to be commonly concealed in such suspected place, or the implements alleged to be there kept for the purpose of aiding in the commission of offenses, and state the particular offense for which such implements are designed.
"4. That it name the person accused of having charge of the suspected place, if there be any such person, or, if his name is unknown, that it describe him with accuracy, and direct him to be brought before the magistrate.
"5. That it be dated and signed by the magistrate, and directed to the sheriff or other peace officer of the proper county.
Art. 633, P. C. "Justice to issue search warrant
"Upon the filing with any justice of the peace, or any other magistrate, of an affidavit made by a reputable citizen that gaming, betting or wagering, as prohibited by the preceding articles of this chapter is being conducted in any building, room, premises or place, describing the same sufficiently for identification, such officer with whom said affidavit is filed shall immediately issue a warrant commanding the peace officer to whom same is directed to immediately enter and search such building, room, premises or place, and in the event the same is a gaming house, as defined in this chapter, to arrest all parties found therein or making their escape therefrom, and to take possession of any gambling paraphernalia, device or equipment found therein and such officer shall immediately take the persons arrested before the nearest magistrate, and lodge the proper complaint against each person so arrested."