We appreciate the force and earnestness of appellant's motion for rehearing, and the written argument in support thereof, but are of opinion that the case was properly decided originally, and that the case of Gouled v. United States, 255 U.S. 298, has no application. In the instant case the affidavit for search warrant set out specifically that at a place named and described, this appellant sold and made in violation of law, spirituous, vinous and malt liquors capable of producing intoxication; that as justifying the making of said affidavit it was further set out that on a date named Mart Holman bought a pint of whisky from appellant at said place and paid him for same by giving him a marked one-dollar bill, whose mark and number were stated in the affidavit, which further set out that the warrant was desired for the purpose of searching the house for the containers, instrumentalities and property described in the affidavit, including said one-dollar bill. The search warrant issued upon said affidavit directed that search be made for all such liquors, containers, utensils, property and instrumentalities, including said one-dollar bill, the number and description of which was set out in the search warrant. That such search warrant was proper, and the affidavit sufficient therefor, seems beyond dispute.
As we understand appellant, he seems to concede that if said money had been found as an incident to or in connection with his arrest, same could have been properly seized, and its use thereafter as evidence would have been legal. We are not able to see the distinction between this proposition and the one embraced by proof of the seizure of said one-dollar bill which had figured physically, — and in a sense necessarily, — in the illegal transaction, i. e., the sale of the whisky, — as an incident to or coincident with a search of appellant's premises under a legal search warrant directing search for all liquors, instrumentalities, property, etc. As stated above, the marked one-dollar bill was accurately described in the affidavit and in the search warrant, but was only mentioned in connection with other things search for which would clearly be legal.
This court has never gone to the extent of holding that when peace officers are engaged in a legal search of premises described in a search warrant, for the kind and character of articles described in said warrant, — and while so engaged discover other evidence of crime not so described, that its seizure would be illegal, or that testimony concerning same when offered in a case to which the testimony was pertinent, would be rejected. We are not willing to hold that in a case such as this where *Page 313 officers with a legal warrant went to the premises referred to and found therein an instrumentality connected immediately with the alleged criminal transaction, that on objection, testimony of such fact should be rejected upon the trial of the accused, when the objection is based upon the proposition that the officers failed to find the other things mentioned in the warrant, and found only one of the instrumentalities with which the crime was committed. While we appreciate the argument and motion of appellant, we cannot agree to the soundness of the position taken.
The motion for rehearing will be overruled.
Overruled.