
    HENDERSON v. STATE.
    (No. 11178.)
    Court of Criminal Appeals of Texas.
    Nov. 23, 1927.
    Criminal law <©=3394 — Evidence obtained by search held admitted without sufficient proof warrant was regular (Code Cr. Proc. 1925, arts. 4a, 727a).
    In view of Code Cr. Proc. 1925, arts. 4a and 727a, placing evidence obtained by search of private residence on basis similar to confessions of accused under article 727, held, that admission of evidence obtained in search of private residence, merely on statement of officers making search that they had search warrant, without showing that warrant was regular on its face and contained recitals showing compliance with legal requirements, was error.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    Albert Henderson was convicted of possessing equipment for the manufacture of intoxicating liquor, and he appeals.
    Reversed and remanded.
    Howard A. Carney, of Atlanta, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing equipment for the manufacture of intoxicating liquor. Punishment is one year in the penitentiary.

When the state placed officers upon the witness stand and proposed to prove by them whát they found in appellant’s private residence as a result of a search, objection was interposed on the ground that the state had not shown that the officer^ had a valid search warrant. The district attorney then asked the witness if they had a search warrant, to which question the objection was made that the warrant was the best evidence. Upon further inquiry by the district attorney, still over objection, it developed that the officers did not have the warrant with them at the trial, but thought it was in the office of the justice of the peace. Without further effort on the part of the state to produce the warrant, or to show its loss and prove its regularity, the state was permitted to prove what was found by the officers in the residence, the evidence being criminative in its nature, over the objection that the state had failed to show that the witness had a valid search warrant.

We perceive nothing objectionable in the statement of the officer that they had a search warrant. This was proof only of the fact that, they were in possession of a warrant. The real question is, having proved only that the officers had a search warrant, without any showing that it was regular on its face, had the state laid a sufficient predicate to permit evidence as to the result of the search? Our present statutes, notably articles 4a and 727a, C. C. P. (1925), place the receipt of evidence secured by search of a private residence somewhat on the same basis as the confession of the accused which, is excluded by statute unless taken under certain conditions (article 727, 1925 C. C. P.), which requires a predicate to be laid by the state which prima facie shows that the formalities have been complied with before the confession becomes admissible. Upon the •exapt point now before us, we said in Chorn v. State (Tex. Cr. App.) 298 S. W. 290:

“There is much reason and authority for the claim that under our statute, where the state shows that the searching officer was possessed of a search warrant to search the premises of the accused for the purpose for which the search was made, which warrant purported to have been issued by competent authority and contained the recitals requisite to show compliance with the legal requirements, that evidence acquired as a result, of the search would be admissible unless its receipt was opposed, not only by objection, but by proof that the supporting affidavit was not in accord with the, law. In other words, the magistrate having issued a warrant showing on its face to be in accord with the duty as a public officer, there would be a prima facie presumption of its validity. See Burtch v. Zuech, 200 Iowa, 49, 202 N. W. 542, 39 A. L. R. 1349; Cornelius on Search and Seizure, § 332, and áuthorities cited in note 84.”

The Supreme Court of Kentucky, in Terrell v. Commonwealth, 196 Ky. 288, 244 S. W. 703, speaking upon the same subject, said:

“⅜ * * If the search warrant is regular and sufficient in its terms and upon its face and is- issued by an officer authorized by law to issue such writ, the same presumption respecting its validity must prevail that is required by law to be accorded any other process, civil or criminal, that is regular on its face. ‡ * * ft

See, also, Adams v. Commonwealth, 197 Ky. 235, 246 S. W. 788. In the absence of a showing that the warrant under which the officers assumed to act in the present case was regular on its face and contained recitals showing compliance with the legal requirements, the learned trial judge fell into error in admitting proof of the evidence complained of..

Appellant presents a further point that the evidence having disclosed that parties other than appellant’s family occupied the house and premises jointly with him, the rule of circumstantial evidence was not met which requires it to exclude every reasonable hypothesis save the guilt of accused. It being necessary to reverse the judgment because of the error discussed, and because the evidence upon another trial may be different, we think it unnecessary to consider or pass upon the question last mentioned.

The judgment is reversed and the cause remanded. 
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