Armstrong v. State

• Decision Date: 05 October 1927
• Docket Number: (No. 10705.)
• Citation: 298 S.W. 604
• Parties: ARMSTRONG v. STATE.
• Court: Texas Court of Criminal Appeals

Page 604

298 S.W. 604

ARMSTRONG v. STATE.

(No. 10705.)

Court of Criminal Appeals of Texas.

October 5, 1927.

Appeal from District Court, Hamilton County; Joe H. Eidson, Judge.

Stony Armstrong was convicted of unlawful possession of intoxicating liquor, and he appeals. Reversed and remanded.

T. R. Mears, of Gatesville, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The unlawful possession of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for a period of one year.

A private dwelling occupied by the appellant and his family was searched by Lemmons, the sheriff. The dwelling was also occupied by another family. A search of the premises resulted in the discovery of a can containing several gallons of whisky. The search was made by virtue of a warrant issued by A. P. Shockley, a justice of the peace, upon an affidavit signed by William Lemmons and G. C. Ferguson, bearing a jurat signed by A. P. Shockley, justice of the peace.

The right to search the private dwelling was challenged upon the ground that the affidavit supporting the search warrant was insufficient, in that it was not made by two credible persons. Lemmons testified that he signed the affidavit and swore to it before Shockley, and also testified that he supposed that Ferguson was present and that he thought Mr. Shipman, the district attorney, was also present. Ferguson testified that he did not swear to the affidavit before the warrant was issued and executed. No evidence was given by either Shockley or Shipman. As the record is presented, it seems conclusive and uncontradicted that Ferguson did not swear to the affidavit before the warrant was issued and executed. The statute (article 691, P. C. 1925) is imperative, commanding that as a predicate for the search of a private dwelling, used for that and for no other purpose, there must be a search warrant issued upon the affidavits of two credible persons. In the absence of such affidavits, the issuance of the search warrant was unauthorized and the search in the instant case was likewse unlawful. See, also, articles 4 and 4a, C. C. P. 1925. In article 727a, C. C. P., it is declared that evidence obtained through an illegal search is not admissible. The evidence of the result of the search was received against appropriate objections properly preserved by bills of exceptions presenting for review the rulings of the...