
    SIMMONS v. STATE.
    (No. 10966.)
    Court of Criminal Appeals of Texas.
    May 23. 1928.
    1. Searches and. seizures <§=>3(6) — Affidavit for search warrant predicated on information and belief only, not stating facts on which belief is founded, is insufficient.
    Affidavit for search warrant predicated on information and belief only, and not stating any facts or circumstances or information upon which belief is founded, is insufficient to support issuance of search warrant.
    2. Criminal law <§=>394 — -Evidence obtained under search warrant based on insufficient affidavit held inadmissible in liquor prosecution (Code Cr. Proo. 1925, arts. 4a, 727a).
    Evidence obtained in search of defendant’s person, where affidavit and search warrant was insufficient because made on information and belief and without stating any fact, circumstance, or detailed information from which it could be determined that proper cause existed for issuance of warrant, was inadmissible under Code Or. Proc. 1925, arts. 4a, 727a, in liquor prosecution.
    Commissioners’ Decision.
    Appeal from District Court, Terry County; Gordon B. McGuire, Judge.
    W. E. Simmons was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Lockhart & Garrard and E. D. Brown, all of Lubbock, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State. ■
   CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for one year.

Operating under a purporte’d search warrant, an officer searched appellant and found on his person two pints of whisky. Immediately prior to the search appellant and another person drove- along the street in an automobile. The officer watched them drive to the curb, where they stopped. When they parked the car he ordered them out of the car and searched appellant.

The affidavit for the search warrant was made on information and belief, without stating any fact, circumstance, or detailed information from which it could be determined that probable cause existed for the issuance of the warrant under which the search was made. The testimony of the officer touching the results of the search was admitted over proper objection. The objection should have been sustained. The affidavit was insufficient to authorize the issuance of the warrant. An affidavit for a search warrant predicated upon information and belief only, and not stating any facts or circumstances or information upon which the belief is founded, is insufficient to support the issuance of a search warrant. Sutton v. State (Tex. Cr. App.) 300 S. W. 639, and authorities cited. 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 ease.”

The facts of the instant case do not bring it within the principle announced in Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762.

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. 
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