McLennan v. State
Citation | 3 S.W.2d 447 |
Decision Date | 22 February 1928 |
Docket Number | (No. 11288.) |
Parties | McLENNAN v. STATE. |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from District Court, Mitchell County; Fritz R. Smith, Judge.
Alva McLennan was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals. Reversed and remanded.
J. F. Cunningham, of Abilene, and S. H. Millwee, of Colorado, Tex., for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being two years in the penitentiary.
Acting under a purported search warrant, officers searched and found in appellant's residence a small quantity of intoxicating liquor, and buried under an outside toilet and smokehouse a considerable quantity. Objection was urged to the evidence as to the result of the search upon the ground that the affidavit for the search warrant states no facts or sets out no information which had come to affiants, but was made solely upon their "belief." The objection was well founded, and the evidence should have been excluded. Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Sutton v. State (Tex. Cr. App.) 300 S. W. 639, and cases collated therein; Lawhorn v. State (Tex. Cr. App.) 299 S. W. 413.
It is recited in the search warrant that the issuing magistrate had examined witnesses under oath, and was of opinion that sufficient grounds existed for the warrant to issue. Such recital is not a compliance with the statutory demands. Article 310, C. C. P. 1925, which relates to issuance of search warrants generally, requires a "written, sworn complaint" to set forth the facts authorizing the issuance of the warrant. Article 691, P. C. 1925, in so far as it relates to warrants for searching premises other than a private dwelling for the discovery of a violation of the liquor law, directs that the provisions of article 310, supra, be followed; as it relates to warrants authorizing the search of private dwellings, article 691 requires the "affidavits of two credible persons" to show certain facts before the warrant may issue. The word "affidavit" has no uncertain meaning. It has been defined in article 23 of the R. C. S. 1925 as follows:
"`Affidavit' means a statement in writing of a fact or facts signed by the party making it, and sworn to before some officer authorized to administer oaths," etc.
What has been said must not be construed as an intimation that there was any impropriety on the part...
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