Smith v. State ( 1931 )

Appellant was convicted for violating § 4, ch. 48, Acts 1925, § 2717 Burns 1926. Errors assigned here present the question of the admissibility in evidence of intoxicating liquor seized 1, 2. and information gained by police officers while making a search of appellant's premises under a search warrant (provided for by § 31, ch. 48, Acts 1925, § 2746 Burns 1926). The search warrant was issued without a sufficient showing that reasonable and probable cause existed for the search — there being neither a positive allegation of facts in the affidavit for the search warrant, nor a hearing of evidence by the issuing magistrate. Becker v. State (1928), 200 Ind. 397,164 N.E. 27; Gwinn v. State (1929), 201 Ind. 420, 423, 166 N.E. 769;Seeger v. State (1929), 201 Ind. 469, 474, 168 N.E. 577.

Judgment reversed, with instructions to sustain appellant's motion for a new trial.

Myers, J., absent.