
    HALL v. STATE.
    (No. 11767.)
    Court of Criminal Appeals of Texas.
    May 16, 1928.
    1. Searches and seizures &wkey;>3(6) — Issuance of search warrant on affidavit based on information and belief, which omitted facts supporting belief, held unauthorized.
    Search warrant based on affidavit made on information and belief, which omitted to state any fact, circumstance, or detailed information in support of belief of affiants, held unauthorized, since affidavit was insufficient.
    2. Criminal 4aw <&wkey;394 — Evidence procured while on. premises under authority of illegal search warrant held inadmissible under statute authorizing arrest for felony committed in officers’ presence (Code Cr. Proc. 1925, arts. 212, 727a).
    Where officers were on premises under search warrant which clothed them with no authority, admission of testimony and evidence which they procured while in house, under provisions of Code Or. Proc. 1925, art. 212, which sanctions arrest without warrant of one committing felony in presence of officer, held error, since liquor was not in their view until they had entered the house, hence testimony was inadmissible under provisions of article 727a.
    3. Arrest &wkey;>63(3), 71 — Arrest and contemporaneous search of residence is sanction where, without unlawful acts, intoxicating liquor comes into officers’ view making it apparent that felony is being committed (Code Cr. Proc. 1925, art. 212).
    If, without unlawful acts on their part, intoxicating liquor came into view,of officers in manner that made it apparent that felony was being committed in their presence by defendant, arrest of defendant and contemporaneous search of residence is sanctioned by Code Or. Proc. 1925, art. 212.
    Commissioners’ Decision.
    Appeal from District Court, Swisher County ; O. C. Small, Judge.
    John L. Hall was convicted for the possession of intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    W. W. Kirk, of Plainview, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, X

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

Armed with a purported search warrant, officers searched appellant’s residence and found therein more than a quart of intoxicating liquor. The affidavit upon which the search warrant was based was made upon information and belief. No fact, circumstance, or information upon which the belief of the affiants was predicated' was stated in the affidavit. Appellant interposed proper objection to the testimony of the officers touching the result of the search. The learned trial judge held that the search warrant was invalid, but admitted the testimony of the officers under the provisions of article 212, C. C. P. 1925, which sanctions the arrest without warrant of one committing a felony in the presence or within the view of an officer.

The trial judge was correct in holding that the search warrant was invalid. The omission to state in the affidavit upon which the warrant was based any fact, circumstance, op detailed information in support of the belief of the affiants rendered the affidavit insufficient, and the magistrate was unauthorized to issue the search warrant. Steverson v. State (Tex. Cr. App.) 2 S.W.(2d) 453.

The officers were on appellant’s premises under a warrant which clothed them with no authority. They testified that before entering the gate they saw a man on the gallery with two beer bottles. They saw no one in the house until they had entered upon appellant’s premises. None of the liquor which was found in appellant’s house was seen by the officers until they had entered upon his premises. They did not know that there was intoxicating liquor in the house until the search was made. As we understand the record, the liquor afterwards recovered by the officers was not in their “view” until they entered the house. If, without unlawful acts on their part, intoxicating liquor came to their view in a manner that made it apparent that a felony was being committed in their presence by appellant, the arrest of appellant and contemporaneous search of his residence would have been sanctioned. Steverson v. State, supra, and authorities cited. However, we do not understand that the facts of the present case bring it within the principle announced by the authorities cited. It follows that the testimony of the officers was inadmissible, under the provisions of article 727a, C. C. P. 1925.

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.  