My Brethren have decided this cause should be reversed solely and alone because of the admission of the contents of a certain black book containing the social security numbers of ten of the eleven "writers" testifying for the State therein. I am not in accord with such reversal. I shall briefly review the authorities given for such a reversal. *Page 374
In the Go Bart Case, 75 L. Ed. 382, a search was made to ascertain whether or not Gowen Bartles were engaged in a conspiracy to violate the liquor laws, under an invalid warrant, the warrant being one of arrest and not a search warrant, but merely to find out whether or not these men were engaged in an illicit conspiracy to violate the prohibition laws.
The search of the house and papers was held under no warrant of any kind. The officers arrested the accused without a warrant; they searched his person and then proceeded to search his house and papers. The Supreme Court upheld the search of his person, but not that of his house and papers.
In the Adams Case, 48 L. Ed. 575, the court held:
"The right to issue a search warrant to discover stolen property or the means of committing crimes is too long established 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 Gouled Case, 65 L. Ed. 650, is of no especial value herein. The paper taken from the Gouled office was stolen therefrom by a secret service man, and no warrant of any kind was present relative to its production.
We find in Cornelius on Search Seizure, p. 160, note that: "In Collins v. Leans, 68 Cal. 284, 9 P. 173, the court held that in executing a warrant to search the premises of defendant for lottery tickets, the officer was justified in taking any tickets of that character discovered in defendant's house, and he was not entitled to a return thereof."
Again, same page, the Adams Case is referred to, in substance, as holding that together with the seizure of 3500 policy slips, certain other private papers tending to identify defendant with the place, was not unreasonable, and the papers were admissible.
Again, the same work on page 385 says: "In a celebrated case decided by the United States Supreme Court (Adams v. New York, supra), it was held that policy slips of an evidentiary nature, seized in the execution of a search warrant for gambling paraphernalia, was admissible in evidence." *Page 375
The game of policy can be played in many ways. Usually, however, same is begun by the issuance of a policy slip, which is evidence in the way of a receipt to the bettor as to what certain numbers he wagers will appear in a drawing to be later held. This slip is a portion of the game, and constitutes one step, usually the initial one, in its being played. The next step in such game is the conveyance of this knowledge to the person in charge of the game of the bettor's choice of numbers. Of course this may be done in numerous ways. In the present instance, it was done by placing a copy of the purchased policy slip in a bag, numbered for identification. This bag, with its contents, was then conveyed by divers means to the central point of the drawing, the game being incomplete until the drawing takes place, and notice of the appearing numbers being given. In the event that the policy slip holder has selected the proper numbers that were drawn, he receives a reward for his astuteness; if his numbers do not appear, the keeper of the game pays him nothing. In order to notify the different holders of policy slips as to what numbers appeared at this drawing, such numbers are usually printed on a slip of paper, and such printings are open to the inspection of the interested.
The implements seized by the officers under their search warrant, in the main, consisted of a printing press, evidently a portion of the gambling paraphernalia and of use in announcing to the interested public the numbers that appeared in the recent drawing, equivalent to telling the lucky holder of the slip that he was a winner, and would be paid his winnings; the many policy slips seized, many of them identified by the persons making same, evidencing the bet placed by the customer; the bags used by the policy writers in their communications with the persons who were keeping or running such game and which were contained in suit cases similar to one seen in the possession of appellant prior to his arrest. Again, a certain book which was found by means of the search warrant which bore the names of all, save one, of the writers who testified herein, and in connection with such names appeared each individual writer's social security number, such facts evidencing the employment of these writers by appellant's brother, with whom appellant was claimed to be associated as a principal. If the seizure of such book was unlawful as no portion of the policy game, which is not admitted, I do not think the same was error in view of the fact that the district supervisor for the Texas Unemployment Compensation Commission testified, and in connection with his testimony there was offered and introduced the quarterly reports to such commission of Frank Cagle, *Page 376 a co-indictee with appellant, which reports showed that each of these writers, save one, was an employee of Frank Cagle. I find no objection to such proof, nor can I see how such an objection would have been tenable, especially in view of the testimony of such writers. The fact of the employment of these writers, and as to how this policy game was conducted became a material issue. These writers evidently had an employer who took the money, who arranged or supervised the drawings, and who gave notice of what numbers had been drawn. The writers, however, never saw the "Big Four" nor any of them. They had a secret manner in which they communicated with them. In these canvas bags, each with a recognized number, they would find certain written instructions as to their conduct in this game. Among such instructions, they find a request for each writer's social security number. Evidently upon a compliance therewith, we find Frank Cagle reporting to the Unemployment Commission the employment of such writer, giving the writer's social security number. Evidently this procedure had some weight as a circumstance to show that the writer was working for Frank Cagle. This circumstances connected with the association shown to have existed between Frank and his brother Rufus doubtless continued its influence in assisting the jury in finding them as acting together in the commission of this alleged offense. The testimony of the supervisor of the Unemployment Compensation Commission was unobjected to, so the record shows, and thus there appears in the record the same testimony unobjected to as was shown by the book that contained the names and social security numbers of the policy writers.
I therefore conclude that all implements, or things used in the playing of the game of policy that were seized under this warrant were admissible, such as the slips, bags, suit cases and printing press, as well as printed slips. If the book showing the names of employees was of but an evidentiary nature, then the same proof was brought in unobjected to from a proper source, and no complaint relative to the book is tenable.
It should be noticed that it was shown by these writers that they had never seen either appellant or his brother Frank Cagle; that the only dealings that they had with the Cagles, if any, was through the bags marked with their numbers and communications therein found. That in one of such communications they found a request for the giving of their Unemployment Compensation numbers, and that they complied with such request by placing same in such bags. That was the only method of communication, if such it be, with the heads of this policy game. *Page 377 That this was of evidentiary value in connecting appellant with what was being done through the exchange of these bags, and their contents, I readily admit, otherwise the admission of such before the jury would have been a futile thing. This cause of necessity had to be tried upon circumstantial evidence, and again upon the law of principals, and any act of Frank Cagle's in furtherance of the common design would be the act of Rufus Cagle, and each would be charged with the same, provided it could be shown they were acting together.
I find from the record that it is shown therein that Frank Cagle was the owner of a certain business operated for amusement, and that he had 46 employees. I also find the names of ten of these writers who testified herein, listed as his employees, and the amount of wages paid each of them. There was also listed as an employee of Frank Cagle one Rufus Raymond Cagle, his social security number being 455-01-4467, his salary $400.00 for the December 1941 quarter. This testimony came from the supervisor of the Texas Unemployment Compensation Commission, and there appears in the record no objection thereto. Under the rule that where improper testimony is admitted that is objected to, yet the same testimony is also admitted from a further source unobjected to, the error, if such there be, is rendered harmless. I think the fact of the finding of the social security numbers of the eleven writers in the black book would be a harmless error, if error at all, since such testimony is present in the record from other sources and no objection to the latter source appearing in the record.
I therefore respectfully enter my dissent herein.