Opinion
No. 24109.
December 1, 1948.
1. — Residence Private — Not Searched — Probable Cause.
A private residence may not be lawfully searched upon "probable cause."
2. — Search — Without Warrant — Unauthorized.
Officers may have been in possession of facts constituting probable cause for the belief that a violation of the liquor laws was occurring in the house but this would not authorize a search of the house without a search warrant.
3. — Evidence — Search — Without Warrant.
Violations of the liquor laws not being felonies, admitting evidence of the result of a search without a search warrant cannot be justified on the ground that a felony was being committed in the view or presence of the officers.
Intoxicating liquor. Appeal from County Court of Kaufman County; penalty, fine of $150.00.
Hon. Harlee Morrison, Judge Presiding.
Reversed and remanded.
Crisp Bankhead, of Kaufman, for appellant.
Fred V. Meridith, County Attorney, of Kaufman, and Ernest S. Goens, State's Attorney, of Austin, for the State.
The conviction is for unlawfully possessing whisky for the purpose of sale, with punishment fixed at a fine of $150.00.
This is a conviction growing out of the same transaction as that against the appellant in Case No. 24,108, this day decided. (Page 481 of this volume.)
In addition to the finding of the beer as shown in Case No. 24,108, the officers also found in appellant's house a quantity of whisky. It is for the possession of this whisky that he stands here convicted.
The right to search for and seize that whisky depends upon the same facts as shown in Case No. 24,108.
Our conclusion that the search in that case was unauthorized determines, also, this case.
For the reasons set forth in said Case No. 24,108, the judgment is reversed and the cause is remanded.
Opinion approved by the Court.