
    LUCAS v. STATE.
    (No. 11208.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    T. Criminal law <S=o394 — Admitting testimony of manufacturing liquor resulting from search based on affidavit not stating grounds of belief held error (Code Cr. Proc. 1925, art. 727a).
    In prosecution for manufacturing intoxicating liquor, where officers entered dwelling house of accused under search warrant issued upon affidavit made upon information and belief, grounds of belief not being therein exhibited, admission of testimony of officers touching results of search held error under Code Cr. Proc. 1925, art. 727a, providing no evidence obtained in violation of Constitution or laws of state shall be admitted against accused on trial in any criminal case, in view of article 4a.
    2. Intoxicating liquors @=3248' — Warrant to search dwelling, based upon affidavit made upon information and belief, not showing dwelling was used for purpose denounced by statute, held unauthorized (Pen. Code 1925, art. 691).
    Warrant to search private dwelling occupied as, such, based on affidavit made upon information and belief in which there is no given fact, circumstance, or detailed information showing or tending to show that dwelling is used for purpose denounced by Pen. Code 1925, art. 691, is unauthorized, and search thereunder is illegal.
    Commissioners’ Decision.
    Appeal from District Court, Wilbarger County; Robert Cole, Judge.
    Jerry Lucas was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    A. G. Walter, of Yernon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   ^ CHEISTIAN, J.

The offense is manufacturing intoxicating liquor; the punishment confinement in'the penitentiary for one year.

Operating under a search warrant, officers discovered a still in operation in a house occupied by appellant. Although appellant’s wife, who had become sick, was at the home of John Lucas at the time of the raid, we think the record reflects the fact that the house entered by the officers was appellant’s private dwelling. The wife of appellant was, according to one of appellant’s witnesses, staying at the home of John Lucas during her illness.

The affidavit upon which the search warrant was issued was made upon information and belief, and the grounds of belief were not therein exhibited. Appellant timely objected to the testimony of the officers touching the results of the search and excepted to the action of the court in admitting the testimony.

. A warrant to search a private dwelling, occupied as such, based upon an affidavit made upon information and belief in which there is given no fact, circumstance, or detailed information showing or tending to show that the dwelling is used for a purpose denounced by article 691, P. G. 1925, is unauthorized,, and a search thereunder is illegal. Ghapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Ferguson v. State (Tex. Cr. App.) 300 S. W. 69.

- An illegal search is penalized by statute. Article 4a, O. C. P. 1925. Article 727a, O. O. P. 1925, provides:

“No evidence obtained * * * in violation * * * of the Constitution or laws of the state of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

It was error to admit, over appellant’s objection, the testimony of the officers touching the results of the search.

For the error pointed out, the judgment is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  