
    Harry Ryan v. The State.
    No. 13169.
    Delivered March 19, 1930.
    Reported in 26 S. W. (2d) 208.
    The opinion states the case.
    
      Wm. Glover of Houston, for appellant.
    
      O’Brien Stevens, Crim. Dist. Atty., and E. T. Branch, Asst. Crim. Dist. Atty., both of Houston, and A. A. Dawson of Canton, State’s Attorney, for the State.
   CHRISTIAN, Judge.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for two years.

Operating under a search warrant, officers searched appellant’s private residence and found therein a pint of whiskey, forty-two bottles of beer, eleven gallons of beer mash and some empty beer bottles and whiskey flasks. Prior to the search, a witness for the state, according to her testimony, had bought a pint of whiskey and two bottles of beer from appellant and his wife. Appellant did not testify in his own behalf. He placed a witness on the stand who declared that he was present at the time the state’s witness came to appellant’s residence, and that he did not see appellant and his wife sell the witness any whiskey or beer. He further said that he did not see any whiskey in the house.

Appellant opposed the reception of the testimony touching the result of the search on the ground that the affidavit was based upon information and belief. The affidavit does not disclose that the averments therein are based.upon information and belief. The two affiants state in positive terms that appellant was selling intoxicating liquor in his private residence. Where the ultimate fact is stated as a fact, and not merely as upon “information and belief,” the magistrate is justified in his conclusion that “probable cause” existed for issuing the warrant, provided those things stated as facts would, if true, furnish sufficient “probable cause.” Ware v. State, 110 Tex. Cr. R. 90. Appellant’s objection was not well taken.

The judgment is affirmed.

Affirmed.

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.  