Opinion
No. 22923.
Delivered October 25, 1944.
Affidavit and Search Warrant.
Affidavit and search warrant, referring to the place desired to be searched as the premises of defendant, without reciting that defendant either occupied, possessed, or had charge of the premises, held invalid, and the testimony obtained thereby was inadmissible.
Appeal from County Court of Baylor County. Hon. Robert Jones, Judge.
Appeal from conviction for violation of the liquor laws; penalty, five months in jail and a fine of $400.00.
Reversed and remanded.
The opinion states the case.
E. F. Fruchte, of Wichita Falls, and Rollie Fancher, of Seymour, for appellant. Ernest S. Goens, State's Attorney, of Austin, for the State.
The appeal is from a conviction for a violation of the liquor law of Baylor County, and a sentence of five months in jail and a fine of $400.00.
There was a search made of appellant's premises under a search warrant based upon an affidavit similar in all things to the affidavit and warrant in A.D. Jones v. State, our No. 22921, this day decided. (Page 546 of this volume), there being only the difference in the names of the accused and description of the property. In this case, as in the Jones case, both the affidavit and warrant fail to show that the place desired to be searched was possessed, occupied by, or in charge of, or in control of the appellant, but merely denominates the same as "the premises of W. G. Gleghorn."
This allegation in the affidavit was insufficient upon which to base a seach warrant, and the testimony obtained by reason of such search should not have been admitted.
The judgment is therefore reversed and the cause remanded.