
    SUTTON v. STATE.
    (No. 11209.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    I. Intoxicating liquors @=248 — Affidavit for warrant to search home for liquor, predicated upon information and belief only, and not stating facts or basis of belief, held insufficient.
    Affidavit for warrant to search defendant’s home for intoxicating liquor, predicated upon information and belief only, and not stating any facts or showing information upon which belief was founded, held insufficient to authorize issuance of warrant.
    .2. Criminal law <§=394 — Where affidavit for. warrant to search home for liquor was insufficient, evidence discovered by search was inadmissible.
    Where affidavit for warrant to search defendant’s home for intoxicating liquor was insufficient to authorize warrant because based upon information and belief only, evidence discovered as result of search was not admissible.
    Appeal from District Court, Wilbarger County; Robert Cole, Judge.
    Sheehy Sutton was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    Storey, Leah & Storey, of Yernon, 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 one year and six months in the penitentiary.

The home of appellant was searched, by officers and a quantity of whisky found. The validity of the search warrant was attacked by motion to quash the affidavit upon which the warrant was based, on the ground that the affidavit did not show “probable cause,” and the receipt of the evidence showing the result of the search was objected to for like reason. The affidavit was predicated upon “information and belief” only, without stating any facts or showing what the information was upon which the belief was founded. The affidavit was insufficient to authorize the warrant, and the evidence discovered as a result of the search was improperly admitted. Chapin v. State (Tex. Cr. App.) 296 S. W. 1095; Stokes v. State (Tex. Cr.( App.) 296 S. W. 1108; Peppers v. State (Tex. Cr. App.) 296 S. W. 1109; Green v. State (Tex. Cr. App.) 296 S. W. 1109; Hodge v. State (Tex. Cr. App.) 298 S. W. 573; Montgomery v. State (Tex. Cr. App.) 298 S. W. 596.

This is a companion case to Allman v. State (Tex. Or. App.) reported in 296 S. W. 580. The improper argument of the district attorney alluded to in paragraph 3 of that opinion occurred in the present case also, and likewise the hearsay evidence condemned in paragraphs 1 and 2 of that opinion was admitted over objection upon the present trial. If this had been a ease permitting the officers the right to search upon “probable cause” — like searching an automobile — in the absence of a search warrant, the hearsay evidence complained of might properly have been heard by the court, in the absence of the jury, to enable the court to determine if “probable cause” existed for making the search and therefore authorized the result of the search to be detailed before the jury. But the present case is not of that character, ■ and the hearsay evidence should not have gone to the jury.

For the reason stated, the judgment is reversed and the cause remanded. 
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     