
    Nick Schenk v. The State.
    No. 11774.
    Delivered May 2, 1928.
    Possessing Intoxicating Liquor — Affidavit for Search Warrant — Insufficient.
    Where an affidavit for a search warrant was made solely upon “information and belief,” without stating any fact or information upon such belief was founded, evidence secured by a search of appellant’s premises upon a search warrant based upon such insufficient affidavit was improperly received. See Chapin v. State, 107 Tex. Crim. Rep. 477, and other cases cited.
    Appeal from the District Court of Archer County. Tried below before the Hon. E. G. Thornton, Judge.
    
      Appeal from a conviction for the possession of intoxicating liquor for the purpose of sale, penalty one year in the penitentiary.
    The opinion states the case.
    
      Mathis & Caldwell of Wichita Falls, for appellant.
    A. A. Dawson of Canton, State’s Attorney, for the State.
   HAWKINS, Judge.

Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being assessed at one year in the penitentiary.

This is the second appeal. The former opinion will be found in 106 Tex. Crim. Rep. 564, 293 S. W. 1101.

The only testimony came from an officer who made the search of appellant’s premises by virtue of a search warrant and found in a hen-house near appellant’s residence a quantity of whiskey in half-gallon fruit jars. The evidence of this witness was objected to because the search warrant was based upon an affidavit which upon its face shows to have been made solely upon “information and belief,” without stating any fact or information upon which such belief was founded. The affidavit is made a part of the bill of exception and verifies the truth of the objection urged. The evidence should have been rejected. Chapin v. State, 107 Tex. Crim. Rep. 477, 296 S. W. 1095. Many cases following Chapin will be found noted in Sutton v. State, 300 S. W. 630. More recent cases are McLennan v. State, 3 S. W. (2nd) 451; Stevenson v. State, 2 S. W. (2nd) 453; Dixon v. State, 2 S. W. (2nd) 272.

The judgment is reversed and the cause remanded.

Reversed and remanded.  