
    DENZLINGER v. STATE.
    No. 13327.
    Court of Criminal Appeals of Texas.
    May 14, 1930.
    James A. Harrison, of Beaumont, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

' The unlawful possession of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

The testimony of the state was obtained through a search warrant obtained on an affidavit, the essential parts of which are as follows:

“That on the said 21 day of June, A. D., 1929, the said parties whose names are unknown to affiants was then and there, and is now, before the malting and filing of this affidavit in writing, nnlawfnlly manufacturing, keeping and possessing for the purpose of sale, and selling in the said place and premises, intoxicating liquors.
“That the said parties whose names are unknown to affiant in the said place and premises, was then and there and is now keeping and using, in the unlawful, manufacture, possession and keeping for the purpose of sale, and sale of the said intoxicating liquors,” etc.
“That the facts, circumstances and statements mentioned and set out in this affidavit in writing are, within the knowledge of the affiants, true and correct, and that the affi-ants obtained their evidence and knowledge of the same as follows, to-wit:
“Reports from reputable neighbors saying that they have observed on several different occasions persons going into said house sober and coming out of said house in a state of intoxication.”

The affidavit is attacked upon several grounds, first, that the persons designated as unknown are not described in the affidavit; second, that the recitals in the affidavit showing probable cause are based upon information and belief, and are thereby rendered inadequate.

The part of the affidavit which states facts showing probable cause is deemed sufficient. The subject has been discussed in Villareal v. State (Tex. Cr. App.) 21 S.W.(2d) 739; Ruhmann v. State (Tex. Cr. App.) 22 S.W.(2d) 1069; Smith v. State (Tex. Cr. App.) 23 S.W.(2d) 387; Smith v. State (Tex. Cr. App.) 24 S.W.(2d) 1095; Ware v. State, 110 Tex. Cr. R. 90, 7 S.W.(2d) 551; Rozner v. State, 109 Tex. Cr. R. 127, 3 S.W.(2d) 441; Harris v. State, 112 Tex. Cr. R. 219, 15 S.W.(2d) 1048; Logan v. State, 108 Tex. Cr. R. 125, 296 S. W. 315, 299 S. W. 204.

In failing to describe the possessors of the premises searched and whose names are alleged to have been unknown, the affidavit is faulty. In article 310, Code Cr. Proc. 1925, speaking of the facts upon which a search warrant may be issued to search a given place, it is said that the name of the person must be stated, “or, if his name be unknown, giving a description, of the accused, or stating that the person ⅞ * * is unknown.” In other words, where neither the name nor the description of the person offending is known, the affidavit is sufficient in that particular if it describes the place and states that the offender is miJcnoion. If, however, it is only the name that is unknoum, it is necessary to give the description. The controlling statutes are discussed in some detail in the opinion of this court in Naulls v. State, 27 S.W.(2d) 180. See, also, Tillery v. State (Tex. Cr. App.) 24 S.W.(2d) 844; Anderson v. State (Tex. Cr. App.) 25 S.W.(2d) 839; De Aguirre v. State, 109 Tex. Cr. R. 584, 7 S.W.(2d) 76.

By way of impeachment of one of the state’s witnesses, the appellant introduced before the jury a part of the affidavit for the search warrant. In permitting the state to introduce the remainder of the affidavit, we think no reversible error was shown. See article 728, Code Cr. Proe. 1925.

The affidavit for the search warrant failing to comply with the constitutional requirements, the evidence obtained by means of the warrant issued upon the affidavit was inadmissible under the terms of article 727a, Code Ct. Proe. 1925.

For the reasons stated, the judgment is reversed, and the cause remanded.  