
    SKILES v. STATE.
    (No. 10312.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    1. Criminal law <&wkey;402(l) — On proper predicate' showing loss and diligence, search warrant may be proved by parol.
    On a proper predicate showing loss and -diligence, a search warrant may be proved by parol, and proof of substance of the warrant suffices.
    2. Criminal law <&wkey;>! 158(4) —Sufficiency of predicate for introduction of evidence obtained under search warrant is for trial court.
    The sufficiency of the predicate showing loss and diligence of search warrant for the introduction of evidence obtained thereunder is for the trial court.
    3. Criminal law <&wkey;394 — Production of search warrant regular on its face justifies receipt of evidence resulting from search, unless warrant was issued on insufficient evidence or otherwise was void.
    The production of a search warrant regular on its face is sufficient to justify the receipt of evidence of the result of the search thereunder, unless accused shows that the warrant was issued on an insufficient affidavit or was otherwise rendered void.
    4. Criminal law <&wkey;394 — Where search warrant was not produced or its loss or contents proved, evidence obtained thereunder was inadmissible in liquor prosecution (Code Cr. Proe. 1925, arts. 4a, 727a).
    Where search warrant under which evidence in liquor prosecution was obtained was not produced at trial nor its loss or contents proved, no proper predicate was laid for the introduction of evidence showing the result of the search of .accused’s dwelling, and such evidence was therefore inadmissible, under Code Or. Proc. 1925, arts. 4a, 727a.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Houston Skiles was convicted of possessing articles constituting equipment for the unlawful manufacture of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Jones & Jones, of Mineóla, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

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

The appellant’s dwelling house and outhouses connected therewith were searched, by an officer claiming to act under a search warrant. The warrant was not produced at the trial. The officer testified that he did not have the search warrant at the time of the trial. He did not know where it was, nor by whom it was issued, but said it was issued by either Judge French or Charley Goldsmith. Quoting, he said:

“I do not know where it is now; it is either at Judge French’s office or Charley Goldsmith’s; we handle so many of those things I can’t keep up with all of them.”

The witness was unable to relate the contents of the warrant, and neither of the persons named by him as possessing it was called as a witness, nor is the failure to do so in any manner explained. Upon a proper predicate showing loss and diligence, a search warrant may be proved by parol, and proof of the substance would suffice. Wharton’s Crim. Ev. (10th Ed.) §§ 207-211; Chorn v. State, 107 Tex. Cr. Rep. 521, 298 S. W. 292; Gonzales v. State, 31 .Tex. Cr. Rep. 508, 21 S. W. 253; Dudley v. State (Tex. Cr. App.) 58 S. W. 111. The sufficiency oí the predicate for the introduction of evidence obtained under a search warrant is for the trial court, and the production of a warrant regular on its face will he sufficient to justify the receipt of evidence of the result of the search, unless the accused show that the warrant was issued on an insufficient affidavit or otherwise rendered void. Chorn v. State, supra; Henderson v. State (No. 11178, Tex. Cr. App.) 1 S.W.(2d) 800, not yet [officially] reported. In the present instance, the warrant was not produced, nor was its loss or contents proved. It therefore follows that no proper predicate was laid for the introduction of evidence showing the result of the search of the appellant’s dwelling place.

Touching the guilt of the appellant, the evidence was conflicting. The state’s evidence was to the effect that whisky was on the premises, while that of the appellant was to the contrary. A tank and a part of a coil were found on the premises, which the sheriff denominated as a “still.” There was also a substance which the sheriff called “mash” and which the appellant declared to be food for his hogs. The testimony of a doctor was to the effect that he had recommended whisky for the wife of the appellant; that she was ill and in need of stimulants. Appellant claimed that the tank and coil were not used' for making whisky, but that he intended at some future time to use them for that purpose in making whisky as medicine for his wife.

We will add that such evidence as was adduced touching the affidavit for the search warrant showed that it was issued on information and belief without stating the grounds of belief.

A discussion of the numerous bills of exceptions found in the record is not deemed necessary further than to say that they are sufficient to present for review the ruling of the learned trial judge in refusing to exclude the testimony of the officer showing the" result of the search of the appellant’s dwelling. Under the circumstances shown in the record, the testimony mentioned was rendered inadmissible by articles 4a and 727a, C. C. P. 1925.

The judgment is reversed and the cause remanded. 
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