
    McCHRISTY v. STATE.
    No. 19276.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1938.
    
      Mahan & Broughton, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possessing whisky in a container not having affixed thereto a stamp showing the payment of the tax due the State of Texas; the punishment, a fine of $100.

Omitting the formal parts, the complaint reads as follows: “Era McChristy did then and there unlawfully have in her possession a jar of whisky to which said jar there was not then and there affixed a stamp showing the payment of the tax on said whisky due to the State of Texas, and to which said jar there was not then and there affixed an affidavit showing that said whisky had been withdrawn from a container of whisky on which said container the taxes due thereon to the State of Texas had been paid.”

Inspectors of the Texas Liquor Control Board found in appellant’s private residence three one-half gallon jars containing whisky. No witness testified that there was not affixed to the containers a stamp showing the payment of the tax due the State of Texas. Moreover, there was no proof that there was not affixed to said containers an affidavit showing that the whisky had been withdrawn from a container of whisky on which the taxes had been paid. Manifestly, the evidence is not sufficient to support the conviction.

The affidavit for the search warrant was made on information and belief. We are of opinion that the facts and circumstances set forth therein are not sufficient to constitute probable cause. It follows that appellant’s objection to the testimony of the officers touching the result of the search should have been sustained.

The judgment is reversed and the cause remanded.

PER C-URIAM.

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.  