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The errors assigned in this appeal from a conviction of appellant on a charge of unlawful possession of intoxicating liquor, (under § 4, ch. 48, Acts 1925, § 2717 Burns 1926), present the question of the admissibility in evidence of liquor seized and information gained by officers while making a search of appellant's premises.
It appears from the record that the search warrant (issued under § 31, ch. 48, Acts 1925, § 2746 Burns 1926), by authority of which appellant's premises were searched, was issued without a sufficient showing that reasonable *Page 398 and probable cause for the search existed, either by a positive affidavit alleging facts or by a hearing of evidence by the issuing magistrate. The affidavit was upon information and belief and the magistrate heard no evidence. In such a case, under the rule established by Wallace v. State (1927),
199 Ind. 317 ,157 N.E. 657 , (Martin and Gemmill, JJ., dissenting), the evidence obtained by the search is inadmissible, and, upon the authority thereof, this judgment is reversed, with directions to grant appellant's motion for a new trial.
Document Info
Docket Number: No. 25,188.
Citation Numbers: 164 N.E. 27, 200 Ind. 397
Judges: MARTIN, C.J.
Filed Date: 12/5/1928
Precedential Status: Precedential
Modified Date: 1/12/2023