This case involves the use in interstate commerce of a trailer as a gambling house.

On April 20, 1964, defendant-appellant Billy Ray Grimes, accompanied by defendant-appellant, Jere Bedford Jordan, ordered a specially constructed mobile home from a manufacturer in Roanoke, Texas. The mobile home contained two bedrooms, a kitchen modified into a bar, and a large room that could be expanded from common highway dimensions to a width of 24 feet and a length of 54 feet. Grimes told the manufacturer that the mobile home was to be used for business entertainment. For the next three years the business entertainment turned out to be gambling. About May 26, 1964, Grimes and Jordan had the trailer set up by Grapevine Lake near Fort Worth, Texas. A witness at the trial testified that he "could hear people making bets" while employed as a bartender in the mobile home at Grapevine Lake. Early in 1965, Cullen James Rowan moved the trailer to Fort Worth at the request of Grimes, and, during July 1965, Rowan, assisted by a Mr. Chapman, moved the trailer to Forney, Texas. A witness who worked for Grimes while the trailer was in Forney and folded it for its next journey testified that he saw Jordan at the trailer and that he may have seen defendant-appellant, Lawrence Lee Guinn. There was no evidence of gambling in the trailer at Forney. In June 1966, Rowan and William A Chapman, the brother of the earlier Chapman, moved the trailer to a site near Checotah, Oklahoma. Grimes, Jordan, and defendant-appellant, Mrs. Jessie Jewell Jordan were convicted of gambling offenses in Oklahoma state court while they were in Checotah. There was no evidence that Guinn was in Oklahoma.

About January 12, 1967, Rowan and Chapman, at the request of Grimes, moved the trailer to Rowan's mobile home lot in Fort Worth, Texas. There was contradictory testimony as to whether the stop in Fort Worth was caused by engine trouble in the tractor which was pulling the mobile home or was for the purpose of selling the mobile home,1 but about February 9, 1967, Rowan and Chapman moved the trailer to a site on the Brazos River near Sealy, Texas. Grimes, Jordan, and Mrs. Jordan were in Houston before the arrival of the trailer, and Guinn, a native of Houston, had leased the land where the trailer was to be set up, ostensibly for a hunting and fishing club.

During March, April, and May, Guinn directed the gambling in the mobile home. On May 5, 1967, Texas Rangers, acting under a search warrant, searched the trailer. A state court convicted Guinn of gambling offenses. The evidence gained as a result of the search was turned over to federal officials. On December 6, 1967, F.B.I. agents, under a search warrant, found that the serial number of the trailer had been changed.

Grimes, Guinn, Jordan, and Mrs. Jordan were indicted on July 2, 1968, for traveling in interstate commerce with intent to carry on a gambling enterprise in violation of 18 U.S.C. Sec. 19522 and for conspiracy to violate that statute in violation of 18 U.S.C. Sec. 371.3 A jury found all four defendants guilty on the substantive and conspiracy counts, except Mrs. Jordan who was granted a directed verdict of acquittal on the substantive offense. The trial judge denied a motion for a new trial.

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The appellants contend, first, that the evidence was insufficient as a matter of law to show that the intent of the interstate travel was to promote a gambling enterprise. An essential element of the offense defined by 18 U.S.C. Sec. 1952, and derivatively 18 U.S.C. Sec. 371, is travel in interstate commerce "with intent to" promote a gambling enterprise. The appellants contend that the interstate travel was from Checotah, Oklahoma to Fort Worth, Texas, where the interstate journey ended. This portion of the Oklahoma to Sealy, Texas, trip, they contend, was made without the requisite intent. The Fort Worth to Sealy portion of the trip, they argue, was a separate journey, and, even if made with the requisite intent, did not violate the statute because of the absence of interstate travel.

The evidence on this point was contradictory, but taking the view of the evidence most favorable to the government, Glasser v. United States, 1944, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680, as we must, there was substantial evidence from which the jury might conclude that this element of the crime was established beyond a reasonable doubt. There was evidence that the move was intended to be from Oklahoma to Sealy, that the stop in Fort Worth was to correct engine trouble, and that the journey from Oklahoma to Sealy was paid for as one unit. The appellants were forced to leave Oklahoma because of discovery of their gambling activities, and they were in the Houston area shortly afterwards preparing to establish operations in Sealy.

The appellants place too much emphasis on the physical movement of the trailer and the fact that the trailer was in Fort Worth for more than three weeks. The gravamen of the offense is not the movement of the trailer in interstate commerce with the requisite intent but rather the travel of the defendants. Admittedly, the movement of the trailer was, as the indictment alleged, part of the scheme, and the jury was instructed on this alleged aspect of the offense. There was substantial evidence that the defendants traveled in interstate commerce with the requisite intent. This element of the crime could be established on the basis of the movement of the trailer from Oklahoma to Sealy or on the basis of the defendants' travel independent of the trailer.

The appellants also contend that the evidence was insufficient to establish venue in the Southern District of Texas. As to the conspiracy count, an overt act in the Southern District of Texas must be proved to establish venue; as to the substantive count, travel in the Southern District of Texas with the requisite intent must be shown. There was ample evidence to support venue. See 18 U.S.C. Sec. 3237.

Finally, the appellants argue that the trial judge erred in failing to rule on their motion for judgment of acquittal because of insufficient evidence at the close of the Government's case. See Jackson v. United States, 5 Cir. 1958, 250 F.2d 897; Montoya v. United States, 5 Cir. 1968, 402 F.2d 847. Their reliance on the deferred-ruling doctrine is misplaced. The doctrine means only that a defendant is entitled to a judgment of acquittal if the evidence at the close of the Government's case is insufficient, and that the trial judge may not, be deferring decision on the defendant's motion, allow sufficient evidence to be supplied by the defense or by the prosecution on rebuttal. If the evidence is sufficient when the prosecution rests, as it is in the instant case, any error in failing to rule promptly on the motion is harmless. See Cooper v. United States, 5 Cir. 1963, 321 F.2d 274, 277.

The appellants object to the introduction of evidence seized in the search by Texas Rangers on May 5, 1967 and in the search by F.B.I. agents on December 6, 1967. Both searches were made on the authority of search warrants, and the appellants direct their attack at the validity of the warrants.

The search warrants issued to Texas Rangers was based on an affidavit executed by a sergeant in the Texas Rangers.4 The appellants contend that the affidavit was insufficient to establish probable cause to support a search warrant. After the Supreme Court decision in United States v. Harris, 1971, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723, we have no doubt that the affidavit was sufficient to support a finding of probable cause.

In Harris, a warrant authorizing a search of the defendant's premises was issued on the basis of a federal tax investigator's affidavit.5 The Supreme Court held the affidavit sufficient, distinguishing Aguilar v. Texas, 1964, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 and Spinelli v. United States, 1969, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637, and relying on Jones v. United States, 1962, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697. The affidavit submitted in the instant case has the elements found to be important in Harris and more. First, the affidavit in the case at bar contains "ample factual basis for believing the informant," 403 U.S. at 579, 91 S.Ct. at 2080, even though the informant is unnamed. The informants related to the affiant that they had seen gambling tables and gambling equipment on at least three occasions while the informants were participating in the gambling.6 In Harris, the Court relied on "personal and recent observations by an unidentified informant of criminal activity [and] factor showing that the information had been gained in a reliable manner." 403 U.S. at 579, 91 S. Ct. at 2080. An important factor was the informant's statement that he had personal information of illicit whiskey because he had purchased some. Second, the affiant in the instant case states that his informants had on other occasions given information regarding illicit gambling operations that was found to be accurate. In Harris, the affiant merely stated that the informant was "prudent". See also Aguilar v. Texas, 1964, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Spinelli v. United States, 1969, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637; Jones v. United States, 1962, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697. Third, the affiant in the instant case stated that the information related by his unnamed informants was corroborated by other sources. This factor was absent in Harris but present and important in Jones, supra. See also Aguilar v. Texas, supra; Spinelli v. United States, supra. Finally, although the present affiant does not relate, as was the case in Harris, personal knowledge of the defendants' reputation, we do not read Harris as requiring such a statement in view of other "substantial basis for crediting the hearsay". 403 U.S. at 581, 91 S.Ct. at 2080. See Aguilar v. Texas, 1964, 378 U.S. 108, 114-115, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Jones v. United States, 1962, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697.7

An F.B.I. agent searched the mobile home on December 6, 1967, and took photographs of the vehicle identification number of the trailer which had been burned away. These photographs were introduced at trial. The appellants contend that the trial judge should have excluded this evidence because the search warrant upon which the search was based was invalid. They again attack the sufficiency of the affidavit upon which a finding of probable cause was based.8 This time, however, the attack on the affidavit challenges the remoteness of the information contained therein.

It is true that an affidavit used to support a search warrant "must speak as of the time of the issue of that warrant". Sgro v. United States, 1932, 287 U.S. 206, 211, 53 S. Ct. 138, 140, 77 L. Ed. 260, 263. See Rider v. United States, 5 Cir. 1966, 355 F.2d 192. There is, however, no arbitrary time limit on how old the information contained in an affidavit may be. Two factors convince us that the search warrant was validly issued and the photographs properly admitted. First, the photographs of the identification number and the testimony of the F.B.I. agent were the only evidence gleaned as a result of the search. The identification number is permanently affixed to the trailer. The fact that the trailer was still located at the location to be searched, a fact attested to in the present tense by the affiant, meant that the serial number was presently there. The situation would be different had the search revealed movable gambling paraphernalia about which no recent information was contained in the affidavit. See Rider v. United States, 5 Cir. 1966, 355 F.2d 192. Although the search warrant, by its terms was not limited to an examination of the vehicle identification number, the only evidence from the search adduced at trial concerned the number. When evaluating a challenge to the admissibility of evidence based on an allegedly invalid search warrant, we must concern ourselves with realities. The appellants cannot complain of evidence which might have been discovered and introduced, but was not. Also, the affidavit contained information about a course of conduct extending over a twelve month period culminating in a raid which yielded gambling paraphernalia. This history was relevant to the magistrate in assessing probable cause. See United States v. Harris, 1971, 403 U.S. 573, 579 fn.^* 91 S. Ct. 2075, 2079, 29 L. Ed. 2d 723.

Next, the appellants complain of the allegedly improper impeachment of defense witness Cullen James Rowan. Rowan was confronted on cross-examination with prior inconsistent statements made to F.B.I. agents. The impeachment was intended to attack Rowan's credibility and cast doubt on his testimony as to the reason behind the stop in Fort Worth. The appellants complain that a sufficient foundation was not laid for the impeachment and that the admission of additional evidence as to the prior inconsistent statements was improper. See 3 Wharton's Criminal Evidence Secs. 917-921, pp. 339-348 (12th ed. 1955); III Wigmore on Evidence Secs. 1017-1029, pp. 684-709 (3rd ed. 1940). We cannot agree. Our study of the record convinces us that a sufficient foundation was laid for the use of the impeaching testimony and that no unfair surprise resulted. Further, the prior inconsistent statements concerned the principal defense theory. This cannot be considered a collateral or immaterial matter. The admission of additional testimony as to the prior inconsistent statements was proper.

The appellants complain of remarks of the prosecutor which tended to disparage Rowan's veracity in the eyes of the jury. The trial court sustained objections to the remarks and instructed the jury to disregard them. Any error was harmless. See F.R.Crim.Pr. 52.

Finally, the appellants contend that the trial court erred in admitting into evidence "mug shots" of the appellants. See Barnes v. United States, 1966, 124 U.S.App.D.C. 318, 365 F.2d 509; see also United States v. Silvers, 7 Cir. 1967, 374 F.2d 828; United States v. Harman, 4 Cir. 1965, 349 F.2d 316; United States v. Reed, 7 Cir. 1967, 376 F.2d 226; Smith v. Rhay, 9 Cir. 1969, 419 F.2d 160. Although, under certain circumstances, admission of suggestive photographs tending to allude to a criminal record or bad character, might well result in reversible error, this is not such a case. Here, the admission of the photographs will not result in reversal because the door for the admission was opened by the defendants. Identification was at issue, and defense counsel cross-examined a government witness about the use of the photographs for identification. It was proper for the government then, on redirect, to introduce the photographs to clear up the doubt as to the identification.

The appellants argue that the jury instructions were improper for two reasons. First, they contend that the instructions failed to instruct the jury precisely on the principal defense theory. See Strauss v. United States, 5 Cir. 1967, 376 F.2d 416; Perez v. United States, 5 Cir. 1961, 297 F.2d 12. The defendants attempted to prove, in the trial court, that the trailer was moved from Oklahoma to Fort Worth with no intent to travel to Sealy, Texas, to engage in gambling. Any intent to carry on a gambling enterprise existed only during the Fort Worth to Sealy journey thereby negating the element of the crime which requires travel in interstate commerce with the requisite intent and raising the defense of abandonment. We have studied the trial court's instructions as well as those requested by the defendants. We hold that the instructions were entirely adequate in presenting the defense theory.9

Second, the appellants contend that the trial judge committed reversible error by submitting the case to the jury on a theory not set out in the indictment. The indictment charged travel from Checotah, Oklahoma to Sealy, Texas, in violation of 18 U.S.C. Sec. 1952.10 The trial judge charged the jury as follows:Specifically, defendants are charged with conspiring to transport the trailer or cause it to be transported from Oklahoma to Fort Worth and on to Sealy, Texas, in connection with an unlawful business enterprise involving gambling in Sealy.

The appellants argue that the insertion of the words "to Fort Worth and on" between "Oklahoma" and "to Sealy, Texas" had the effect of amending the indictment. We cannot agree. If anything, the alleged interjection of the abandonment defense into the indictment was helpful to the appellants.

The appellants raise three further grounds for reversal. We find them all to be without merit. First, the appellants contend that the indictment was duplicitous and that the Government should have been required to elect upon which charge it would proceed. We believe that the indictment adequately apprised the defendants of the charges against them, enabled them to prepare a defense, and protected against subsequent prosecution for the same offense. Second, the appellants argue that the convictions must be reversed because the district court took judicial notice of the statutes of the State of Texas without requiring proof of those statutes or announcing that it was taking judicial notice of the statutes. The trial judge properly charged the jury on the applicable Texas statutes as on any other question of law; the appellants' contention is clearly without merit. See Lamar v. Micou, 1885, 114 U.S. 218, 5 S. Ct. 857, 29 L. Ed. 94. Finally, the appellants complain of remarks by the prosecutor during his closing argument to the jury. When read in context, the remarks, although questionable, were not so likely to effect the jury's verdict as to require reversal. Any error involved was harmless. F.R.Crim.P. 52.

Affirmed.

ON PETITIONS FOR REHEARING AND PETITIONS FOR REHEARIN EN BANC

The Petitions for Rehearing are denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petitions for Rehearing En Banc are denied.