Harris v. State

In the motion for rehearing attention is directed to the fact that original opinion overlooked the complaint made of the description of the premises in the search warrant. The warrant reads thus:

"* * * located in, at, on and about a certain house and premises located 13 miles south from the city of Marshall, Texas, south of the Marshall and Carthage road."

The description of the place to be searched is essential. It is so declared in the Constitution, Art. 1, Sec. 9. See also Cornelius on Search Seizure, Sec. 117, p. 318; Dupree v. State, 102 Tex. Rep. 466. To the mind of the writer the description of the premises is obviously insufficient. It is a house located thirteen miles south of the city of Marshall and south of the Marshall and Carthage dirt road. Concerning the kind of house, the name of the owner or occupant, the distance south of the Marshall and Carthage road, whether in Harrison or Panola County, if in either, the warrant is silent. Descriptions somewhat meagre have been held sufficient to guide the officer possessing the search warrant to the property intended. See Hernandez v. State, 4 S.W.2d 82; Watson v. State, 9 S.W.2d 265. In those cases the locality of the premises was described with some degree of certainty and the possessor of the premises to be searched was named. The recitals in the present instance wholly fail to meet the requirement of the Constitution in the particular mentioned. The receipt of evidence introduced in the present instance, obtained by officers in the execution of an invalid search warrant, was forbidden by Art. 727a, C. C. P., 1925. In receiving the testimony over the objection mentioned there was material error committed, and for which reason the motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.