
    FOSTER v. STATE.
    (No. 9948.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.)
    1. Crimina) law &wkey;>693 — Defendant’s motion to suppress testimony of wliat was found by officers with search warrant, before testimony was offered, held properly overruled.
    Defendant’s motion to suppress testimony of what was found by officers with warrant to search defendant’s premises, before testimony was offered, was properly overruled.
    2. Criminal law <&wkey;394 — Admission of testimony of officers of what they found' on illegal search of defendant’s premises held reversible error (Acts 36th Leg. [1919] 2d Called Sess. c. 78, § 35 [Vernon’s Ann. Pen. Code Supp. 1922, art. 588'4q]).
    Where affidavit for search warrant was sworn to by only one person, and did not show that private dwelling to be searched was used for any purpose other than as a private residence, as required by Acts 36th Leg. (1919) 2d Called Sess. c. 78, § 35 (Vernon’s Ann. Pen. Code Supp. 1922, art. 588%q), admission of testimony of officers of what they found on such search held reversible error in view of statute.
    Appeal from District Court, Henderson County; Ben E. Dent, Judge.
    W. M. Foster was convicted of possessing intoxicating liquor for purpose of sale, and ho appeals.
    Reversed and remanded.
    Miller & Miller, of Athens, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

Conviction in district court of Henderson county of possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

Officers with a search warrant searched appellant’s private dwelling occupied by him and his family as a residence and found abundant evidence of possession of a quantity of intoxicating liquor, etc. Appellant filed a motion to suppress the testimony of what was found by the officers, before same was offered. The court properly overruled the motion. Such practice is unknown in our procedure. Appellant also objected to the introduction of the testimony of the officers as to what they found in his house, when same was offered on the trial, and by proper bill of exceptions complains of the court’s action in admitting said testimony. The Revised Criminal Statutes of 1925 were not in effect at the time of this trial, but in the.Acts of the Second Called Session of the Thirty-Sixth Legislature, p. 238, § 35 (Vernon’s Ann. Pen. Code Supp. 1922, art éSS^q), appears the statement that no affidavit for search warrant to search a private dwelling occupied as a private residence shall be issued, for the purposes mentioned in said act unless some part of such dwelling be occupied as a store, shop, hotel, boarding house, or for some purpose other than a private residence, or unless the affidavits of two credible persons show that such residence is a place where intoxicating liquor is sold or manufactured in violation of the terms “of this act.” The affidavit on which the search warrant was based in the instant' case revealed that it was sworn to by only one person, and nothing in the affidavit showed that said private dwelling was used for any other purpose than as a private residence. The search was on July 23, 1925. The statute rejecting evidence obtained by any officer by illegal search went into effect June 19, 1925. Giving application to said statute, under the above facts, it seems obvious that the learned trial judge fell into error in admitting the-testimony, for which error the judgment must be reversed. We deem it unnecessary to discuss any of the other matters complained of.

. The judgment is reversed, and the cause remanded.  