Nations v. State , 113 Tex. Crim. 406 ( 1929 )

Conviction for possession of intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

There are two bills of exception, each complaining of substantially the same matter. While a part of each of said bills is in reference to testimony heard by the trial court upon the presentation of the motion for new trial, and this part of said bills is in question and answer form, which causes the State's Attorney with this court to object to the consideration of said bills, we are of opinion that each of said bills presents material error unaffected by the part of the bills in the objectionable form. The testimony as given upon the trial of each of two witnesses was objected to upon the ground that the affidavit for search warrant to search the private residence of the accused, was not in legal form. The provisions of Art. 691, P. C., relating to search warrants for intoxicating liquor, are specific that no warrant shall be issued to search a private dwelling occupied as such, * * * unless the affidavits of two credible persons show that such residence is a place where intoxicating liquoris sold or manufactured in violation of the terms of the act. In the instant case the affidavit for the search warrant contains no such statement. Said affidavit sets out that in the said private residence "There is located certain property which is being used as a means of violating the prohibition laws of the State of Texas, being property and implements described as follows." Evidence obtained or found as incidents of an illegal search can not be admitted under the provisions of our statute. The search being based upon an illegal affidavit, was unwarranted. The testimony should not have been received. For the error of its reception, the judgment will be reversed and the cause remanded.

Reversed and remanded.