
    FIELD v. STATE.
    (No. 11062.)
    Court of Criminal Appeals of Texas.
    Nov. 2, 1927.
    1. Criminal law &wkey;>394 — Evidence obtained on search of business place for intoxicating liquor without producing search warrant held inadmissible (Code Cr. Proc. 1925, arts. 4a, 727a).
    Under Code Cr. Proc. 1925, art. 4a, making unlawful the search of place of business without having obtained search warrant, and article 727a, prohibiting the reception of evidence thus obtained, where defendant’s place of business was searched for intoxicating liquor without producing search warrant, and district attorney stated that the prosecution was not relying on search warrant, testimony of the .search and evidence obtained held inadmissible in action for possessing liquor for sale.
    2. Criminal law (&wkey;36l(l) — Excluding defendant’s testimony im intoxicating liquor trial of drunken man’s statements explaining presence on defendant’s premises held error; evidence of his presence having been admitted.
    In prosecution for possessing liquor for sale, where evidence that officers had found drunken man on defendant’s premises was admitted, excluding defendant’s testimony of the man’s statements explaining Ms presence on the premises held error.
    3. Criminal law &wkey;>394—On intoxicating liquor trial, evidence of search, without warrant, of field, not occupied by defendant, held admissible.
    On trial for possessing intoxicating liquor for sale, evidence of search, without search warrant, of field and pasture near defendant’s place of business, but not occupied nor claimed by him, held admissible.
    Commissioners’ Decision.
    Appeal from District Court, Tom Green County; J. F. Sutton, Judge.
    H. B. Field was convicted of the unlawful possession of intoxicating liquors for the purpose of sale, and he appeals.
    Reversed and remanded.
    Anderson & Mobley, of San Angelo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was convicted of the unlawful possession of intoxicating liquors for the purpose of sale, and his punishment assessed at one year’s confinement in the penitentiary.

Appellant’s bills of exception Nos. 1 and 5 complain of the reception of evidence under the following circumstances: That the officers went to appellant’s place of business which was conducted in a box house on the Sherwood road near San Angelo, where he conducted a cold drink, hamburger, and sandwich stand, and the officers, after having testified that they searched appellant’s place, testified that they had a search warrant at the time, but that they did not then know where it was, and, after the district attorney stated that the state was not relying upon the search warrant, the appellant objected to any testimony as to what was found in the said place of business or as to what was done by the said officer and his associates at the time and place because the search warrant was not produced, which objections were by the court overruled, and the officers were permitted to testify that in the said place of business they found about 16 bottles of beer, several empty bottles, and several jars in the back room.

Article 4a, C. O. P. 1925, makes unlawful the search of the private residence, actual place of habitation, place of business, person, or personal possessions of any person without first having obtained a search warrant. Article 727a, O. O. P. 1925, prohibits the reception of evidence thus obtained. Also see following authorities: Gorman v. State (Tex. Cr. App.) 296 S. W. 533; Stokes v. State (Tex. Cr. App.) 296 S. W. 1108; Chapin v. State (Tex. Cr. App.) 296 S. W. 1095. The admission of such evidence was erroneous.

It seems that the court also permitted the officers to1 testify that they found a man lying down drunk in defendant’s place of business. The defendant, testifying in his own behalf, was asked if this drunk man told him why he wanted to stop and offered to prove that the man stated to defendant, in substance, that he was too drunk to drive his car, and he wanted to lay down and sober up, thus explaining the presence of the drunk man on the premises. Upon objection, this was excluded. If it were permissible for the state to prove that a drunk man was found, on the premises as a circumstance tending to show that intoxicating liquors were unlawfully kept on such premises, the defendant should not be denied the privilege of explaining the presence of such person so as to show that his being there was entirely innocent and in no way connected with the supposed unlawful possession of intoxicants. .If the state was entitled to prove this as an incriminating fact, surely the defendant had the right to explain it.

We see no error in the reception of evidence of the search of a field and pasture near the appellant’s place of business, but not occupied or claimed by him. Johnson v. State, 106 Tex. Cr. R. 669, 294 S. W. 555.

For the errors discussed, 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. 
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     