
    FERGUSON v. STATE.
    (No. 11192.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    1. Intoxicating liquors &wkey;>248 — Warrant for search of private dwelling under affidavit on information and belief, not showing unlawful sale or manufacture of liquor, is unauthorized ■ and search thereunder is illegal (Pen. Code, art. 691; Code Cr. Proe. art. 4a).
    Warrant to search a private dwelling, based upon affidavit made upon information and belief, in which no fact or information is given showing that dwelling is used for sale or manufacture of intoxicating liquors in violation of Pen. Code, art. 691, is unauthorized and search thereunder is illegal and subject to penalty, under Code Cr. Proc. art. 4a.
    2. Criminal law <&wkey;394 — Testimony obtained in search of defendant’s dwelling under unauthorized warrant held inadmissible (Pen. Code, art 691; Code Cr. Proo. art. 727a).
    In prosecution for possessing liquor for purpose of sale, warrant for search of defendant’s dwelling based upon affidavit made on information and belief, without stating grounds of belief, was unauthorized, under Pen. "Code, art. 691, and testimony of officers obtained as_ result of illegal search thereunder was inadmissible, under Code Cr. Proc. art. 727a.
    Commissioners’ Decision.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    J. H. Ferguson was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Reversed and remanded.
    Chastain & Judkins, of Eastland, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for 4 years.

Operating under a search warrant, officers discovered at the private dwelling occupied by appellant and his family 6 half-gallon fruit jars of whisky. Several jars of whisky were discovered on appellant’s premises in a chicken house, which was 30 or 40 steps from the back door of the dwelling. An automobile driven by one Kelsey, in which appellant was riding, was also searched near appellant’s dwelling, and several jars of whisky taken therefrom.

The affidavit upon which the search warrant was issued was made by two persons upon information and belief, and the grounds of belief were not therein exhibited. Appellant timely objected to the testimony of the officers touching the results of the search, and excepted to the action of the court in admitting the testimony.

A warrant to search a private dwelling, occupied as such, based upon an affidavit made upon information and belief in which there is given no fact, circumstance, or detailed information showing or tending to show that the dwelling is used for a purpose denounced by article 691, P. C., is unauthorized, and a search thereunder is illegal. Chapin v. State (Tex. Cr. App.) 296 S. W. 1095.

An illegal search is penalized by statute. Article 4a, C. C. P.

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 case.”

It was error to admit, over appellant’s objection, the testimony of the officers touching the results of the search made at appellant’s private dwelling. Chapin v. State, supra.

For the error pointed out, 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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