
    PEPPERS v. STATE.
    (No. 10186.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    Criminal law <&wkey;394 — Evidence obtained by searching private residence for intoxicating liquors under warrant, issued on affidavit made on information and belief only, held inadmissible.
    Evidence obtained in search of private residence for intoxicating liquors under warrant issued on, affidavit, made on information and belief, and not stating facts authorizing issuance of warrant, held inadmissible.
    Commissioners’ Decision.
    Appeal from District Court, Bowie County ; Hugh Carney, Judge.
    Sill Peppers was convicted of unlawfully possessing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Keeney & Dalby, of Texarkana, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Dyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of unlawfully possessing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the officers obtained a search warrant, searched the private residence of appellant, and there found more than a half-gallon of whisky in fruit jars, three or four gallons of “choc beer,” and twelve or fifteen empty fruit jars.

The appellant’s defense was that he had the whisky for his personal use, and not for sale, and challenged the validity of the affidavit and search warrant and the legality of the evidence introduced thereunder.

There are 15 bills of exception in the record, hut, after a careful examination of all the matters presented therein, we are of the opinion that bill 13 presents the only question that demands our attention. In this bill appellant questions the sufficiency of the affidavit and search warrant, and complains of the admission of the state’s evidence thereunder, showing that the officers found intoxicating liquor in his residence. The appellant contends that such evidence was illegally obtained because the affidavit was made upon information and belief, and without stating any facts authorizing the issuance of a search warrant based thereon. This part of the affidavit states:

“A. K. Neeley and M. T. Goodwin, * * * being duly sworn, on bis oath deposes and says that he has good reason to believe and does believe that intoxicating liquor,” etc.

And the search warrant shows upon its face that it was issued upon an affidavit setting forth the belief of the affiants. The appellant’s contention on this issue is correct, and must be sustained, under the doctrine announced by this court in Chapin v. State (No. 10670) 296 S. W. 1095, decided June 22, 1927, yet [officially] unreported, and the numerous .authorities therein cited. This court, in the Chapin Case, supra, held that a search warrant issued upon an affidavit based wholly on information and belief was invalid, and would not authorize the search of a private residence.

Eor the error above discussed, the judgment of the trial court is reversed, and the cause remanded.

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