
    McLENNAN v. STATE.
    (No. 11288.)
    Court of Criminal Appeals of Texas.
    Feb. 22, 1928.
    1. Criminal law <&wkey;394 — Evidence obtained by search under search warrant, where affidavit was made solely on affiant’s belief, held inadmissible in liquor prosecution.
    Evidence obtained as result of search under search warrant, affidavit for which stated no facts and set out no information which had come to affiants but was made solely upon their “belief,” should have been excluded in liquor prosecution.
    2. Intoxicating liquors <&wkey;249 — .Recital in search warrant that issuing magistrate examined witnesses and was of opinion that sufficient grounds existed for issuing warrant was not compliance with statute; “affidavit” (Pen. Code 1925, art. 691).
    Recital in search warrant to search residence that issuing magistrate had examined witnesses under oath, and was of opinion that sufficient grounds existed for warrant to issue, was not compliance with Pen. Code 1925, art. 691, requiring affidavit of 'two credible persons to show certain facts before warrant may issue; “affidavit” meaning statement in writing of fact or facts signed by party making it and sworn to before some officer authorized to administer oaths.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Affidavit.]
    3. Intoxicating liquors <&wkey;248 — Affidavit or written sworn complaint for search warrant must contain sufficient facts showing that probable cause exists for issuing warrant (Pen. Code 1925, art. 691; Code Cr. Proc. 1925, art. 310).
    Under Pen. Code 1925, art. 691, and Code Cr. Proc: 1925, art. 310, written sworn complaint or affidavit for search warrant must contain sufficient facts showing that probable cause exists authorizing warrant to issue in order to comply with Constitution and laws of United States and state.
    4.Criminal law <&wkey;1169(1) — In liquor prosecution, admitting evidence obtained under invalid search warrant held reversible error (Code Cr. Proc. 1925, art. 727a).
    Under Code Cr. Proc. 1925, art. 727a, providing that no evidence obtained in violation of any provision of Constitution or laws of state or of United States shall be admitted against accused, admission in liquor prosecution of evidence obtained by officers under an invalid search warrant held reversible error.
    Appeal from District Court, Mitchell County ; Eritz R. Smith, Judge.
    Alva McLennan was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    J. E. Cunningham, of Abilene, and S. H. Millwee, of Colorado, Tex., for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being two years in the penitentiary.

Acting under a purported search warrant, officers searched and found in appellant’s residence a small quantity of intoxicating liquor, and buried under an outside toilet and smokehouse a considerable quantity. Objection was urged to the evidence as to the result of the search upon the ground that the affidavit for the search warrant states no facts or sets out no information which had come to affiants, but was made solely upon their “belief.” The objection was well founded, and the evidence should have been excluded. Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Sutton v. State (Tex. Cr. App.) 300 S. W. 639, and cases collated therein; Lawhorn v. State (Tex. Cr. App.) 299 S. W. 413.

It is recited in the search warrant that the issuing magistrate had examined witnesses under oath, and was of opinion that sufficient grounds existed for the warrant to issue. Such recital is not a compliance with the statutory demands. Article 310, C. O. P. 1925, which relates to issuance of search warrants generally, requires a “written, ■sworn complaint” to set forth the facts authorizing the issuance of the warrant. Ar tide 691, P. C. 1925, in so far as it relates to warrants for searching premises other than a private dwelling for the discovery of a violation of the liquor law, directs that the provisions of article 310, supra, be followed; as it relates to warrants authorizing the search of private dwellings, article 691 requires the “affidavits of two credible persons” to .sliow certain facts before 'the warrant may issue. Tbe word “affidavit” has no uncertain meaning. It has been defined in article 23 of the R. O. S. 1925 as follows: ,

‘Affidavit’ means a statement in writing of a ‘fact or facts signed by the party making it, and sworn to before some officer authorized to administer oaths,” etc.

What has been said must not be construed as an intimation that there was any impropriety on the part of the magistrate in conducting an investigation to ascertain the facts before issuing the warrant; on the contrary, such action by him is to be highly commended. What we do hold is that, unless there is incorporated in a “imiten sworn complaint” — “affidavit”—sufficient facts showing that “probable cause” exists authorizing the warrant to issue, there has not been compliance with the Constitution and laws either of the United States or of this state. If upon the investigation made by the magistrate facts were developed which constituted “probable cause,” such facts could and should have been incorporated in the affidavit.

Article 727a, C. C. P. 1925, reads:

“No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the state of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

Prompt objection was interposed when the evidence obtained by the officers under an invalid warrant was offered. Its admission demands a reversal.

The judgment is reversed and the cause remanded. 
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