Opinion
No. 10958.
Delivered February 29, 1928.
Possessing Liquor Containing in Excess of One Per Cent of Alcohol by Volume — Affidavit for Search Warrant — Insufficient.
Where appellant's business house was entered and searched by officers under a search warrant issued by virtue of a complaint based upon information and belief and which contained no statement of facts showing probable cause, the result of such search was not admissible in evidence against appellant on his trial. See Chapin v. State, 296 S.W. 1096, and other cases cited.
Appeal from the District Court of Taylor County. Tried below before the Hon. W. R. Ely, Judge.
Appeal from a conviction for possessing liquor containing in excess of one per cent of alcohol by volume, penalty two years in the penitentiary.
The opinion states the case.
Kirby, King Overshiner of Abilene, for appellant.
Sam D. Stinson, State's Attorney, and Robert M. Lyles, Assistant State's Attorney, for the State.
Offense the possession of liquors containing in excess of one per cent of alcohol by volume, penalty two years in the penitentiary.
Operating under an illegal search warrant the officers of Taylor County searched a business house in possession of appellant and found therein a quantity of liquors admitted to contain over one per cent of alcohol by volume. The search warrant was issued by virtue of a complaint based upon information and belief and which contained a statement of no facts showing probable cause. Proper and timely objections were made to the reception of this evidence and its admission was erroneous under the uniform holdings of this court. Chapin v. State, 296 S.W. 1095; Sutton v. State, 300 S.W. 639; Lawhorn v. State, 299 S.W. 413; Alva McLennan v. State, No. 11288, not yet officially reported.
For the error in the admission of this evidence the judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.