
    LAWHORN v. STATE.
    (No. 11229.)
    Court of Criminal Appeals of Texas.
    Nov. 9, 1927.
    1. Criminal law ©=»394 — Evidence of liquor found on defendant’s premises held inadmissible under affidavit for search warrant based on affiant’s belief that defendant possessed liquor (Code Cr. Proe. 1925, arts. 4a, 727a; Pen.*Code 1925, art. 691.)
    In prosecution for possessing mash and still for manufacturing liquor, admission of testimony by officers that they searched home of defendant and found still on premises, together ■with 2Yz barrels of mash, was error, under Code Cr. Proc. 1925, arts. 4a, 727a, and Pen. Code. 1.925, art. 691, where affidavit for search warrant issued to search “dwelling house and outbuildings” of defendant was based on belief of affiant that defendant was engaged in unlawful sale of liquor and keeps and possesses liquor for purpose of sale.
    2. Intoxicating liquors <&wkey;248 — Affidavit based on affiant’s belief that defendant sold and possessed liquor held insufficient for issuance of search warrant (Code Cr. Proc. 1925, art. 4a; Pen.. Code 1925, art. 691).
    Affidavit that affiant has good reason to believe and does believe that defendant is engaged in selling liquor and possesses liquor for sale held insufficient for issuance of warrant to search defendant’s premises under Code Cr. Proc. 1925, art. 4a; Pen. Code 1925, art. 691.
    Commissioners’ Decision.
    Appeal from District Court, Wilbarger County; Robert Cole, Judge.
    S. A. Lawhorn was convicted of possessing mash and a still for the purpose of manufacturing liquor, and he appeals.
    Reversed and remanded.
    Storey, Leak & Storey, of Vernon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, the unlawful possession of mash and a still for the purpose of manufacturing intoxicating liquor; penalty, one year in the penitentiary.

A search warrant was issued to search the “dwelling house and outbuildings” of appellant. This was based upon an affidavit of one Leverett and Walker, alleging “that he has good reasons to believe and does believe that Sam Lawhorn is engaged in the unlawful sale of intoxicating liquor, and keeps and possesses for the purpose of sale intoxicating liquors’’ in and near said dwelling house and. outbuildings.

The officers testified over objection of appellant that they searched “the home of the defendant, Sam Lawhorn, and found on said premises a still and 2barrels of mash.” This was objected to for many reasons, among which were that the, above affidavit does not state as a fact that intoxicating liquors were possessed for sale by defendant, that it was upon information and belief, and the search warrant was based upon an affidavit containing hearsay evidence only, and that nothing was before the justice of the peace from which he could determine if probable cause existed.

The action of the court in the admission of said evidence came within the rule laid down in Chapin v. State (Tex. Cr. App.) 296 S. W. 1095, and within the provision of articles 4a and 727a, C. C. P., and article 691, P. C., and was erroneous.

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.,  