Appellant says in his motion for rehearing that he has no fault to find with the holding in Ware v. State,110 Tex. Crim. 90, 7 S.W.2d 551; Bird v. State, 110 Tex. Crim. 99,7 S.W.2d 953; Dikes v State, 120 Tex. Crim. 127,48 S.W.2d 259, cited in our original opinion. Said cases announce that an accused could not go behind an affidavit for search warrant which affidavit *Page 50 was positive in form and which exhibited probable cause, and attempt to show that the affiants were acting on information and belief. Appellant insists that he made no attempt to impeach the recitals in the affidavit, but that his attack was upon the jurat of the officer as not speaking the truth regarding the form of the oath administered to affiants. The jurat to the affidavit reads as follows: "Subscribed and sworn to before me by Roy Brewer and Ivy Wilkinson on this the 1st day of September, A.D. 1934." (signed) "G. B. Reed, Justice of the Peace, Precinct No. 3, Potter County, Texas."
Brewer testified that the justice of the peace administered a joint oath to him and Wilkinson, and that as he remembered the oath the justice incorporated therein the words "to the best of your knowledge and belief." Wilkinson and Reed contradicted Brewer as to the form of the oath, it being their positive testimony that the words "to the best of your knowledge and belief" were not incorporated in the oath. It is appellant's contention that an affidavit will not support the issuance of a search warrant unless it is sworn to by affiants "positively and unequivocally," and that the testimony regarding the form of oath administered being contradictory it raised an issue of fact which should have been submitted to the jury under proper instruction. Appellant objected in the proper manner because such instruction was omitted from the court's charge, and also requested the giving of a special charge on the subject which would have told the jury if they found that in administering the oath to Brewer and Wilkinson the justice of the peace incorporated the words "to the best of your knowledge and belief" that the jury would acquit appellant. The only evidence against appellant was that of the two officers as to what was found under the search warrant.
We have not been able to agree that under the record the question is so serious as appellant seems to think. The affidavit upon which the search warrant was predicated contains a description of the house to be searched, and an averment that in said house spirituous, vinous and malt intoxicating liquors were sold and manufactured, and that appellant and others kept said house for that purpose. We copy from the affidavit the following statement. "And each of said affiants further deposes and says that their knowledge of the truth of the above and foregoing statements is based upon the following facts, viz: The affiant, Roy Brewer, says that a credible person told him that intoxicating liquors in excess of 3.2 percent alcohol by weight were being kept at the above described premises for the *Page 51 purpose of sale, this the 1st day of September, 1934, and affiant, Ivy Wilkinson, says that a credible person told him that intoxicating liquors in excess of 3.2 percent alcohol by weight were being kept at the above described premises for the purpose of sale, this the 1st day of September, 1934."
This court has always held that an affidavit made on information and belief, and which state no facts, circumstances or information upon which such belief is based would not support the issuance of a search warrant. See Steverson v. State, 109 Tex.Crim. Rep., 2 S.W.2d 453, and cases therein cited. It is equally as well settled that this court will uphold the issuance of a search warrant where the affidavit shows it was made upon information and belief, if there is stated in the affidavit such facts, circumstances or information, as exhibits "probable cause." See Rozner v. State, 109 Tex.Crim. Rep., 3 S.W.2d 441; Ruhman v. State, 113 Tex.Crim. Rep., 22 S.W.2d 1069; Smith v. State, 114 Tex.Crim. Rep., 23 S.W. 387; Elms v. State,114 Tex. Crim. 642, 26 S.W.2d 211; Denzlinger v. State, 116 Tex.Crim. Rep., 28 S.W.2d 160; Bird v. State,116 Tex. Crim. 290, 31 S.W.2d 651; Hartless v. State,50 S.W.2d 1097. In the present case it appears from the recitals in the affidavit itself that the affiants thereto were not basing the request for the search warrant upon their own knowledge but were predicating it upon information from others, which information is set out in the affidavit. If the justice of the peace had administered the oath as was remembered by Brewer no sensible construction could be given it other than that affiants were making the affidavit upon the information exhibited, and belief in its truth. Under the circumstances we do not regard the refusal of appellant's special instruction as presenting error calling for reversal.
This further observation may not be out of place. Was it the duty of the court to determine the admissibility of the evidence of the officers if such admissibility turned upon the form of oath administered, or should the court have permitted the jury to determine its admissibility under a proper instruction? In Bingham v. State, 97 Tex.Crim. Rep.,262 S.W. 747, we discussed the procedure where it was necessary for the court to first determine a preliminary issue of fact in ruling on the admissibility of proffered testimony, and expressed doubt as to the propriety of extending the rule of submitting such matters to the jury. If the issue made in the present case as to the form of oath administered by the justice of the peace was a *Page 52 vital question, still it was a preliminary matter and if the court should have decided it, then under the evidence on the point he was fully warranted in finding against appellant's contention as to the form of oath.
The motion for rehearing is overruled.
Overruled.