
    AGUIRRE v. STATE.
    (No. 11610.)
    Court of Criminal Appeals of Texas.
    May 9, 1928.
    1. Intoxicating liquors <9=248, 2491 — Place to be searched should be- described with some degree of certainty in affidavit and search warrant, and person whose premises are involved should be identified (Pen. Code 1925, art. 691; Code Cr. Proc. 1925, arts. 304-332).
    Place to be searched should be described in affidavit and search warrant with some degree of certainty, and affidavit should state name of person, or should give such description to officer executing warrant as will guide him in identifying person whose premises are to be searched, under Pen. Code 1925, art. 691, and Code Cr. Proc. 1925, arts. 304-332.
    2. Intoxicating liquors <3=249 — “Consent” to search for liquor was not inferred from statement, “Ail right, go ahead,” made after , officer stated he had warrant.
    I “Consent” to search of premises for intoxicating liquor cannot be inferred from officer’s statement that he had search warrant and would like to search defendant’s premises for whisky, and defendant’s statement, “All right, go ahead.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Consent.]
    3. Intoxicating liquors <3=248 — Existence of probable cause to issue warrant is determined from face of affidavit alone (Const, art. I, § 9).
    Whether probable cause exists to issue warrant for search of premises for intoxicating liquors under Const, art. 1, § 9, is to be determined from the face of the affidavit, not from evidence aliunde.
    4. Criminal law <3=394 — Testimony showing result of search under liquor warrant, based on affidavit upon information and belief, which failed to set out facts, held inadmissible (Code Cr. Proc. 1925, art. 727a; Const, art.- I, § 9). - ■ ■
    ■ Where affidavit for search of premises for liquor was-.based solely- upon information and belief without setting out facts Showing probable cause as required by Const, art. 1, § 9, testimony showing result of search in prosecution for possessing liquor for sale was inadmissible under Code Cr. Proc. 1925, art. 727a.
    Appeal from District Court, San Patricio County; ,.T. M. Cox, Judge.
    Incarnation Garza De Aguirre was convicted of possessing liquor for tbe purpose of sale, and she appeals.
    Reversed and remanded.
    J. H. Scbleyer, of New Braunfels, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Tbe offense is tbe possession of intoxicating liquor for tbe purpose of sale; punishment fixed at confinement in tbe penitentiary for one year.

Tbe state’s testimony comes from an officer who testified that be found whisky in a room occupied by tbe appellant. He purported to have acted under a search warrant issued solely on an affidavit upon information and belief, setting out no facts upon which tbe information is based, and reading in part as follows:

“A certain dwelling house on the property of James Miller, on section 19, in the Geo. H. Paul subdivision of the Coleman Fulton Pasture Company’s lands, occupied by a certain Mexican whose true name to affiants is unknown.”

Tbe warrant follows tbe affidavit and is deficient in tbe essential requisites of a search warrant based upon an affidavit showing probable cause, as required by article 1, § 9, of the Bill of Rights, as construed in many judicial decisions. See Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1097.

The description of both the person and the premises is vague. We gather from the evidence that on the premises were several houses divided into compartments designed for the use of laborers upon the estate. The particular house which was searched under the warrant contained twelve rooms. Each of them were separate apartments, and one of them was occupied by the appellant and three other persons; and the others by various persons, all cotton pickers. It appears that the appellant was a woman, a fact not disclosed ⅛⅜ either the affidavit or the warrant. Inasmuch as the search warrant was not supported by the affidavit exhibiting any fact or information purporting to show probable cause, a detailed discussion of the other defects mentioned will be omitted. It will be stated, however, that both by statute and precedents it is contemplated that the place shall be described with some degree of certainty.' See article 691, P. C. 1925; also, title 6, C. C. P. 1925; Dupree v. State, 102 Tex. 455, 119 S. W. 301. So, also, tbe affidavit should state the name of the person', or, if the name be unknown, it should give such description to the officer executing the warrant as will guide him in identifying the person whose premises it is intended he shall search. See Alford v. State, 8 Tex. App. 561; title 6, C. C. P., supra.

Prom the officer’s testimony it appears that he told the appellant that he had a search warrant and would like to search her place for whisky, and that she said: “All right, go ahead.” Consent to the search will not he inferred from the circumstances stated. See Dixon v. State (Tex. Cr. App.) 2 S. W.(2d) 272; Hall v. State, 105 Tex. Cr. R. S65, 288 S. W. 202. Whether there was probable cause to issue the warrant is to be determined from the face of the affidavit and not from evidence aliunde. See McLennan v. State (Tex. Cr. App.) 8 S.W.(2d) 447; John Ware (No. 11334) 7 S.W.(2d) 551, and Doll Bird (No. 13553) 7 S.W.(2d) 953 not yet [officially] reported. The receipt of the testimony showing the result of the search was improper by reason of the statutes of the state. See article 727a, C. C. P. 1925.

The judgment is reversed and the cause remanded. 
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