Adverting to bills of exceptions Nos. 4, 5, 6 and 7, appellant insists that a reversal of the judgment should result.
Before permitting the searching officer to disclose to the jury the result of the search, the court heard testimony to the effect that Judge French, a Justice of the Peace, had issued a search warrant upon an affidavit made by the witness. The form prescribed for searching for liquor was used, but the references as to liquor were erased and in lieu thereof the stolen property was described. The premises of the appellant were also described. We understand from the qualification of bill No. 4 that the court, in the absence of the jury, heard evidence touching the loss of the search warrant, and upon such evidence as that mentioned above, permitted the officer to testify to the result of the search. Against the receipt of the evidence of the result of the search, it was urged that there was no proper search warrant issued by a proper and legal affidavit and application.
In bill No. 5 it appears that the sheriff testified that he made a search of the appellant's premises and had a search warrant at the time. The witness was permitted to testify as to the contents of the search warrant. Against the receipt of this testimony objection was urged that there was no testimony showing that the search warrant contained the essential statutory requirements to make it a valid and legal search warrant. Touching what the witness testified the contents of the warrant *Page 525 to be, the bill is silent. It cannot, therefore, be justly said that the bill shows that the search warrant did not contain the statutory essentials. In connection with this bill, the court makes a similar statement to that touching bill No. 4, wherein it is declared that in the absence of the jury the witness testified that the search warrant was lost out of his pocket somewhere near Truby.
In bill No. 6 it appears that the witness O'Bar participated in the search and had possession of the search warrant. While upon the witness stand, he was asked the following question:
"Was the search warrant in the usual and ordinary form of search warrants, to the best of your recollection?"
To this the witness replied in the affirmative. It is made to appear from the court's qualification that the search warrant had been lost.
In bill No. 7 it is made to appear that the witness O'Bar was permitted to answer the following question with reference to the application for the search warrant:
"Was that application filled out in the ordinary and usual manner of applications for search warrants?"
The witness answered: "Yes, sir; I think so."
In the qualification of this bill it is shown that French, the Justice of the Peace, who issued the search warrant, testified that upon a search of his office he had failed to find the affidavit upon which the search warrant was issued, but that such affidavit was made by the officer. It is a serious question whether under the facts in the present case the burden was upon the state to show that the application for the search warrant complied with the forms of law. See Smoot v. State, 160 Ga. 744, 41 Amer. Law Rep. 1533. There is much reason and authority for the claim that under our statute, where the state shows that the searching officer was possessed of a search warrant to search the premises of the accused for the purpose for which the search was made, which warrant purported to have been issued by competent authority and contained the recitals requisite to show compliance with the legal requirements, that evidence acquired as a result of the search would be admissible unless its receipt was opposed,not only by objection, but by proof that the supporting affidavit was not in accord with the law. In other words, the magistrate having issued a warrant showing on its face to be in accord with the duty as a public officer, there would be a prima facie presumption of its validity. See Burtch v. Zuech, 39 Amer. Law Rep. 1349; Cornelius on Search Seizure, Sec. 332, and authorities cited in note 84. However, in the *Page 526 present instance, the court having determined upon proof, in the absence of the jury, that the affidavit was lost, and that there was sufficient predicate for the introduction of secondary evidence, the testimony contained in the several bills under discussion, if admissible, were sufficient to meet the objection that there was an absence of showing of proper affidavit, as a basis for the issuance of the search warrant. The contents of both the search warrant and the affidavit, if shown to have been lost and therefore unavailable, proof of their contents would be met by parol evidence upon a proper predicate showing diligence. From Wharton's Crim. Ev., 10th Ed., Sec. 206, we quote:
"The admissibility of evidence to prove a lost document is a question exclusively for the court; as a preliminary to such admission, the prior existence and genuineness of the lost document must be established, and that it cannot be produced by the party seeking to prove its contents."
The loss and diligence must be shown to the satisfaction of the trial courts. See Wharton's Crim. Ev., Secs. 207 to 211. In the present instance, both the warrant and the affidavit are shown to have been lost. This showing was made upon evidence heard by the trial judge in the absence of the jury. The evidence heard on the predicate is not brought forward in any of the bills of exceptions complaining of the sufficiency of the predicate, and in the absence of the evidence which was heard by the trial judge upon which he based his decision that the predicate was sufficient, it seems obvious that this court is not in a position to review or overturn his conclusion. See Underhill's Crim. Ev., 3d Ed., Sec. 94. Where the predicate is such as to authorize the resort to oral proof of the contents of the written instrument which has been lost, generally speaking, it is sufficient that the substance be proved. See Cyc. of Law Proc., Vol. 25, p. 1627; Gonzales v. State,31 Tex. Crim. 508; Dudley v. State, 58 S.W. 111.
From an examination of the statement of facts, we learn that the substance of the search warrant and the affidavit as comporting with the statutory requirements was vouched for by the testimony of the witness French, a Justice of the Peace, and Whaley, a deputy sheriff, this being testimony other than that to which the bills of exceptions relate. In addition, it was shown without controversy that the appellant consented to the search of his premises. This being true, the necessity for a search warrant was obviated. See Hall v. State, 105 Tex. Crim. 365. We also think the bills show no error. Even if that were *Page 527 doubtful, however, in view of the other matters to which we have just adverted, this court would not be authorized to reverse the judgment.
The motion is overruled.
Overruled.
OPINION ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.