
    ARMSTRONG v. STATE.
    (No. 10705.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    1. Intoxicating liquors &wkey;>248 — Issuance of search warrant and search of private dwelling thereunder for .intoxicating liquor is unauthorized, in absence of affidavits of two credible persons (Pen. Code, 1925, art. 691; Coda Cr. Proc. 1925, arts. 4, 4a).
    In absence of affidavits of two credible persons, as required by Pen. Code 1925, art. 691, issuance of search warrant is unauthorized, and search of private dwelling thereunder tor intoxicating liquors unlawful, especially in view of Code Cr. Proc. 1925, arts. 4, 4a.
    2. Criminal law <&wkey;394, 562 — Evidence obtained by searching, dwelling for liquor under warrant without sufficient affidavits was inadmissible and conviotion thereon must be reversed (Code Cr. Proc. 1925, art. 727a; Pen. Code 1925, art. 691.
    Under Code Cr. Proc. 1925, art. 727a, evidence obtained by search of private dwelling for intoxicating liquors under warrant issued without affidavits of two credible persons, as required by Pen. Code 1925, art. 691, was improperly received, and judgment of conviction based solely thereon must be reversed.
    Appeal from District Court, Hamilton County; Joe H. Eidson, Judge.
    Stony Armstrong was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed and, remanded.
    T. R. Mears, of Gatesville, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Dyles, Asst. State’s Atty., both 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 a period of one year.

A private dwelling occupied by the appellant and his family was searched by Lem-mons, the sheriff. The dwelling was also occupied by another family. A search of the premises resulted in the discovery of a can containing several gallons of whisky. The search was made by virtue of a warrant issued by A. P. Shockley, a justice of the peace, upon an affidavit signed by William Lemmons and G-. C. Ferguson, bearing a ju-rat signed by A. P. Shockley, justice of the peace.

The right to search the private dwelling was challenged upon the ground that the affidavit supporting the search warrant was insufficient, in that it was not made by two Credible persons. Lemmons testified that he signed the affidavit and swore to it before Shockley, and also testified that he supposed that Ferguson was present and that he thought Mr. Shipman, the district attorney, was also present. Ferguson testified that he did not swear to the affidavit before the warrant was issued and executed. No evidence was given by either Shockley or Ship-man. As the record is presented, it seems conclusive and uncontradicted that Ferguson did not swear to the affidavit before the warrant was issued and executed. The statute (article 691, P. O. 1925) is imperative, commanding that as a- predicate for the search of a private dwelling, used for that and for no other purpose, there must be a search warrant issued upon the affidavits of two credible persons. In the absence of such affidavits, the issuance of the search warrant was unauthorized and the search in the instant case was likewse unlawful. See, also, articles 4 and 4a, C. C. P. 1925. In article 727a, C. C. P., it is declared that evidence obtained through an illegal search is not admissible. The evidence of the result of the search was received against appropriate objections properly preserved by bills of exceptions presenting for review the rulings of the trial court. It was upon the testimony thus obtained alone that the state relied for a conviction. It is urged that there was a failure to show the ownership or possession of the liquid in the appellant. This is explained by the fact that the house was occupied by his family and by another family.

There are other questions raised1, but, in view of the disposition to be made, a discussion of them is deemed unnecessary. The search, as shown by the. record, resulting in obtaining the testimony upon which the conviction rests, being an illegal one, the evidence obtained thereunder was improperly received. For that reason the judgment is reversed, and the cause remanded.  