
    HORTON v. STATE.
    (No. 10426.)
    (Court of Criminal Appeals of Texas.
    Feb. 9, 1927.)
    Criminal law <@=394 — Admission of testimony, procured on illegal search before statute making such testimony inadmissible became effective, held reversible error (Code Cr. Proc. 1925, arts. 4a, 727a).
    Admission in- evidence, over defendant’s objection, of testimony of police officers procured on search of defendant’s premises for intoxicating liquor without warrant, was reversible error, though offense occurred before Code Cr. Proc. 1925, arts. 4a, 727a, making evidence so procured inadmissible, became effective, where trial was had after it became effective.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Sam Horton was convicted of unlawfully possessing intoxicating liquor, and he appeals.
    Reversed.
    P. M. Scott and H. T. Lyttleton, both of Marshall, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

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

The entire evidence in the case comes from two peace officers who searched the premises of the appellant, occupied by him, consisting of a grocery store and garage about six or eight feet apart.

The conviction rests upon the testimony of the officers showing the result of the search. This testimony was introduced over the objection of the appellant to the effect that, in the absence of a search warrant, testimony to what was found upon the search was rendered inadmissible by article’ 727a, C. C. P. 1925, declaring that testimony acquired through an illegal search shall not be admitted ; and by article 4a, C. C. P. 1925, in which a search for intoxicating liquor in the building occupied by the appellant was rendered unlawful.

The learned trial judge, over the appellant’s objection, sanctioned the introduction of the testimony upon the ground that, the offense having taken place at a time antecedent to the date on which the statutes mentioned became effective, the objection was not available to the appellant, although at the time of his trial the statutes in question had become operative. This court has held in several cases that the statutes mentioned were applicable to facts available to the accused at the time of his trial, though the offense was charged to have been committed at an earlier date. See Odenthal v. State (No. 9967), 290 S. W. 743; Sherow v. State (No. 9927), 290 S. W. 754, not yet [officially] reported; Askew v. State, 59 Tex. Cr. R. 152, 127 S. W. 1037; Mrous v. State, 31 Tex. Cr. R. 597, 21 S. W. 764, 37 Am. St. Rep. 834; Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262; 25 Ruling Case Law, p. 791, § 38; Underhill’s Crim. Ev. (3d Ed.) § 11; Mallett v. North Carolina, 181 U. S. 594, 21 S. Ct. 730, 45 L. Ed. 1015.

Under the law of this state, the officers having searched the appellant’s house without a search warrant, and without his consent, were forbidden, against the appellant’s objection made on the trial, to give testimony against him of the result of the search in which whisky was found upon his premises. There being no evidence against the appellant, except that which was obtained by means of the illegal search mentioned, and that having been received over his objection, the judgment must be reversed. It is so ordered. 
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