ON MOTION FOR REHEARING.
MORROW, Presiding Judge.In his motion for rehearing *79appellant renews his claim that the record fails to show compliance with arts. 319 and 324, C. C. P. Art. 319 declares in substance that before seizing the property one having a search warrant shall give notice of his purpose in executing the warrant to the person in charge or possession of the place described in the warrant. Article 324 requires the officer executing the search warrant to make return in writing showing his execution of the warrant with an inventory of the property seized. The testimony of one of the officers making the search, as it appears in the statement of facts, is in substance that he had a search warrant to search room 214 of the Boyer Hotel. From his testimony we quote:
“We went over there on a search warrant, and we had a search warrant as to the particular room 214. We had an. affidavit and a search warrant to that.”
From the record, it shows that the documents mentioned were produced at the trial and identified by the witnesses. The warrant and the affidavit were introduced before the court but not before the jury.
As understood, the facts bear no analogy to those in the case of Elms v. State, 26 S. W. (2d) 211; nor do we regard the facts in the present case on the subject mentioned as being in any material sense different from those in McGee v. State, 51 S. W. (2d) 717, and other cases cited in the original opinion.
Appellant did not testify upon the trial.
The propriety of refraining from reading the affidavit for the search warrant in the presence of the jury, unless there shall be some special reason for doing so, has been affirmed.
Touching the return showing the disposition of the search warrant mentioned in art. 324, supra, the record is silent. However, the failure to make the return would not vítate the search warrant; nor, so far as the record shows, would it affect the procedure followed. If there was evidence of the failure to make the return or showing that appellant was injured thereby, the matter might present a different question. It has been held in several cases cited in Cornelius on Search and Seizure, Second Series, page 565, that the failure to make the return would not void the search warrant nor the execution thereof. Among the Texas cases on the subject is Dennis v. State, 2 S. W. (2d) 223, and cases therein cited.
We are constrained to overrule the motion for rehearing,, and it is so ordered.
Overruled..