
    FOWLER v. STATE.
    (No. 10419.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1927.)
    1. Criminal law <&wkey;>694 — In prosecution fon possessing liquor for sale, motion to suppress testimony acquired through search held unsanctioned.
    In prosecution for possessing liquor for sale purposes, motion to suppress testimony acquired through search helé not sanctioned.
    2. Criminal law ®=>693 — In prosecution for possessing liquor for sale purposes, illegality of search is available on objection to evidence at time it was offered.
    In prosecution for possessing liquor for sale, illegality of search is to be set up by way of objection to evidence at time offered.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    J. H. Fowler was convicted of possessing-intoxicating liquor for sale purposes, and he appeals.
    Affirmed.
    Umphres, Mood & Clayton, of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Róbt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   MORROW, P. J.

The conviction is for the-possession of intoxicating liquor for the purpose of sale. Penalty, one year in the penitentiary.

There are several bills of exceptions challenging the ruling of the court in receiving the testimony of officers to the effect that they searched the automobile of the appellant and found therein 10 gallons of whisky. In these bills complaint is made of the receipt of the testimony upon the ground that it was without a proper search warrant. Prom our examination of the search warrant, we fail to perceive wherein it fails to meet the requirements of tfya law. The point is made, however, that there is no affidavit. There was proof that the affidavit was lost, and also proof of its contents. According to the evidence adduced, the affidavit met all the legal requirements pertaining to the predicate necessary for obtaining a search warrant to search an automobile.

In some of the bills complaint is made of the overruling of a motion to suppress the testimony acquired through the search. This practice is without sanction in this state, but the illegality of the search is available on objection to the evidence at the time it is offered.

Our examination of the evidence furthermore leads us to the conclusion that, before making the search of the automobile in question, the officers who made the search, and who gave the testimony as to the result thereof, were possessed of sufficient information to justify them in making the search without a warrant. The facts to which they testified are deemed sufficient to bring the case within the rule declared in Battle v. State (#10,505) 290 S. W. 762, not yet [officially] reported, wherein article 690, P. O. 1925, was construed as authorizing the search of an automobile by an officer who, in advance of the search, had probable cause, as that term is defined in Battle v. State, supra, and in Carroll v. United States, 267 U. S. 132, 45 S.Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790.

Failing to find error revealed by the record, the judgment is affirmed.  