Montgomery v. State

• Decision Date: 05 October 1927
• Docket Number: (No. 10587.)
• Citation: 298 S.W. 596
• Parties: MONTGOMERY v. STATE.
• Court: Texas Court of Criminal Appeals

298 S.W. 596

MONTGOMERY v. STATE.

(No. 10587.)

Court of Criminal Appeals of Texas.

October 5, 1927.

Commissioners' Decision.

Appeal from District Court, Morris County; R. T. Wilkinson, Judge.

Quinnie Montgomery was convicted of the possession of mash for the purpose of manufacturing intoxicating liquors, and he appeals. Judgment reversed, and cause remanded.

J. H. French, Jr., of Daingerfield, and J. A. Ward, of Mt. Pleasant, for appellant.

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

CHRISTIAN, J.

The offense is possession of mash for the purpose of manufacturing intoxicating liquors; the punishment, confinement in the penitentiary for a period of 1 year.

Operating under a search warrant, officers discovered in appellant's field a copper still, two 50-gallon barrels of mash, and two pot holes. In appellant's garden they found a still cap, and in the private dwelling occupied by appellant several fruit jars were found, one of which contained whisky.

The trial court, over the objection of appellant that the search warrant was issued upon an affidavit made upon information and belief and that the grounds of belief were not exhibited in the affidavit, admitted the testimony of the officers showing the result of the search. The record discloses that the affidavit upon which the search warrant was issued was made by two persons upon information and belief, and that the grounds of belief were not therein exhibited. In the recent case of Chapin v. State (No. 10670, Tex. Cr. App.) 296 S. W. 1095, decided on June 22, 1927, and not (officially) yet reported, this court held that a warrant to search a private dwelling, occupied as such, based upon an affidavit made upon information and belief in which there is given no fact, circumstance, or detailed information showing or tending to show that the dwelling is used for a purpose denounced by article 691, P. C. 1925, is unauthorized, and that a search under such warrant is illegal. The statutes of this state penalize an illegal search. Article 4a, C. C. P. 1925. Article 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."

It is clear under the holding of this court in the case of Chapin v. State, supra, that the search warrant in the instant case was...