Simmons v. State

The offense is transporting intoxicating liquor, the punishment confinement in the penitentiary for one year.

Operating under a purported search warrant an officer searched appellant and found on his person two pints of whiskey. Immediately prior to the search appellant and another person drove along the street in an automobile. The officer watched them drive to the curb where they stopped. When they parked the car he ordered them out of the car and searched appellant.

The affidavit for the search warrant was made on information and belief, without stating any fact, circumstance or detailed information from which it could be determined that probable cause existed for the issuance of the warrant under which the search was made. The testimony of the officer touching the results of the search was admitted over proper objection. The objection should have been sustained. The affidavit was insufficient to authorize the issuance of the warrant. An affidavit for a search warrant predicated upon information and belief only, and not stating any facts or circumstances or information upon which the belief is founded is insufficient to support the issuance of a search warrant. Sutton v. State,300 S.W. 639, and authorities cited. The statutes of this state penalize an illegal search. Art. 4a, C. C. P., 1925. Art. 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." The facts of the instant case do not bring it within the principle announced in Battle v. State, 290 S.W. 762.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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.