
    JENKINS et al. v. STATE.
    (No. 10871.)
    Court of Criminal Appeals of Texas.
    Oct. 26, 1927.
    Rehearing Denied. Nov. 23, 1927.
    1. Intoxicating liquors <&wkey;>248 — Warrant for searching dwelling, based on affidavit on in'formation and belief, reciting no fact, circumstance, or detailed information tending to show dwelling used for prohibited purposes, held unauthorized, and search thereunder illegal (Pen. Code 1925, art. 691).
    A warrant to search a dwelling house for intoxicating liquors, which was based on an affidavit of information and belief, which recited no fact, circumstance, or detailed information showing, or tending to show, that the dwelling was used for a liquor purpose denounced by Pen. Code 1925, art. 691, held unauthorized, and officers’ search under such warrant illegal.
    2. Criminal law &wkey;>394 — Officers’ testimony touching results of search of defendant’s dwelling under illegal warrant held inadmissible against defendant (Code Cr. Proc. 1925, arts. 4a, 727a).
    Where a search for intoxicating liquors was illegal because of an insufficient search warrant, and the search was therefore a violation of Code Cr. Proc. 1925, art. 4a, the testimony of officers touching the results of the search of defendant’s dwelling house held inadmissible in such defendant’s prosecution, because of article 727a, restricting the use of evidence obtained in violation of law.
    3.Criminal lav/ &wkey;>394 — Evidence obtained through illegal search of dwelling house held admissible against defendants other than tenant (Code Cr. Proc. 1925, arts. 4a, 727a).
    Since the right to complain of the search of a dwelling house under an illegal warrant, as provided by Code Cr. Proc. 1925, arts. 4a, 727a, is a privilege personal to the tenant, evidence obtained by a search under an illegal warrant held admissible against defendants who were not tenants of the dwelling searched.
    Commissioners’ Decision.
    Appeal from District Court, Mitchell County; W. P. Leslie, Judge.
    V. G. Jenkins, Prank Johnson, and P. D. Weddle were convicted of the possession of equipment for the purpose of manufacturing intoxicating liquor, and they appeal. Affirmed as to the defendants Jenkins and
    Weddle, and reversed and cause remanded as to defendant Johnson.
    S. I-I. Millwee, of Colorado, Tex., for appellants.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   CHRISTIAN, J.

The offense is the possession of equipment for the purpose of manufacturing intoxicating liquor; the punishment confinement in the penitentiary for one year.

Appellants were indicted and tried jointly. One of the state’s witnesses, J. A. Wilson, lived near the appellant Prank Johnson. This witness went to Johnson’s home frequently. On the night of April 21, 1926, the witness was at Johnson’s home. When he knocked at the door, Johnson opened the door, 'and came out and appeared to be frightened. Weddle and Jenkins, the other appellants herein, were seen by the witness through the curtains in a north room. The witness smelled something like sour bran, and could see that there was a' fire in the room. The witness sent his boy to the officers with instructions to report to them what the witness had discovered. The officers secured a search warrant authorizing them to search the residence of Johnson, one of the appellants herein. The affidavit for the search warrant was made upon information and belief, and there were given therein no facts, circumstances, or detailed information tending to show that the residence was being used for a purpose denounced by article 691, Penal Code 1925. Operating under the search warrant, officers discovered in Johnson’s home equipment for manufacturing intoxicating liquor. Johnson was not present at the time the officers entered his home, but came in while they were making the search. At the time'the search was made, appellants Jenkins and Weddle were in the room where the equipment for manufacturing liquor was discovered by the officers, under conditions which showed guilty connection with the possession of said equipment.

Appellants have brought forward numerous bills of exception wherein complaint is made that the trial court erred in admitting, over their objection, the testimony of the officer touching the results of the search.

The search warrant was issued without legal authority. A warrant to search a private dwelling, occupied as such, based upon an affidavit made upon information and belief, in which there is given no fact, circumstance, or detailed information showing, or tending to show, that the dwelling is used for a purpose denounced by article 691, Penal Code 1925, is unauthorized, and a search under such warrant is illegal. Chapin v. State (Tex. Cr. App.) 296 S. W. 1095.

The statutes of this state penalize an illegal search. Article 4a, C. C. P. 1925. Article 727a, C. C. P., provides that:

“No evidence obtained * * * in violation * * * of the Constitution or laws of the state of Texas, or of the United States of America, shall be ^admitted in evidence against the accused on the trial of any criminal case.”

As to the appellant Prank Johnson, the testimony of the officers touching the results of the search was inadmissible.

The right to complain because the search of Johnson’s residence was illegal was not available to the other appellants. It is not shown that they were in any manner interested in the premises, but, on the other hand, it is disclosed by the record that they lived in another and different place. In Cornelius on Search and Seizure, § 12, p. 62, the rule is stated as follows:

“The right to complain because of an el-legal search is a privilege personal to the wronged or injured party, and is not available to any one else.”

See, also, McFarlan v. State, 106 Tex. Cr. R. 384, 292 S. W. 885; Dozier v. State, 105 Tex. Cr. R. 413, 289 S. W. 45.

As to appellants Jenkins and Weddle, the judgment of the trial court is affirmed. As to appellant Johnson, 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.

On Motion for Rehearing.

MORROW, P. J.

In the motion for rehearing it is contended that the 'eridence obtained in the search of Johnson’s house in which the' appellants were engaged in the commission of the offense charged was rendered inadmissible by article 727a, C. C. P. 1925, and that the right to complain of its receipt applied to all parties, including the appellants, who were not wronged or injured by the illegal search of Johnson’s house. This contention has been before the court in several recent cases. See Craft v. State (Tex. Cr. App.) 295 S. W. 617, in which a number of cases from other jurisdictions are cited. See, also, Stansberry v. State (Tex. Cr. App.) 295 S. W. 604; Wilkirson v. State (Tex. Cr. App.) 296 S. W. 558; Allman v. State (Tex. Cr. App.) 296 S. W. 580. In each of these cases the conclusion reached is in accord with that announced by this court on the original hearing, which is deemed correct. The motion is overruled. 
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