Sutton v. State
| Decision Date | 14 December 1927 |
| Docket Number | (No. 11209.) |
| Citation | 300 S.W. 639 |
| Parties | SUTTON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Wilbarger County; Robert Cole, Judge.
Sheehy Sutton was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals. Reversed and remanded.
Storey, Leak & Storey, of Vernon, 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 one year and six months in the penitentiary.
The home of appellant was searched by officers and a quantity of whisky found. The validity of the search warrant was attacked by motion to quash the affidavit upon which the warrant was based, on the ground that the affidavit did not show "probable cause," and the receipt of the evidence showing the result of the search was objected to for like reason. The affidavit was predicated upon "information and belief" only, without stating any facts or showing what the information was upon which the belief was founded. The affidavit was insufficient to authorize the warrant, and the evidence discovered as a result of the search was improperly admitted. Chapin v. State (Tex. Cr. App.) 296 S. W. 1095; Stokes v. State (Tex. Cr. App.) 296 S. W. 1108; Peppers v. State (Tex. Cr. App.) 296 S. W. 1109; Green v. State (Tex. Cr. App.) 296 S. W. 1109; Hodge v. State (Tex. Cr. App.) 298 S. W. 573; Montgomery v. State (Tex. Cr. App.) 298 S. W. 596.
This is a companion case to Allman v. State (Tex. Cr. App.) reported in 296 S. W. 580. The improper argument of the district attorney alluded to in paragraph 3 of that opinion occurred in the present case also, and likewise the hearsay evidence condemned in paragraphs 1 and 2 of that opinion was admitted over objection upon the present trial. If this had been a case permitting the officers the right to search upon "probable cause" — like searching an automobile — in the absence of a search warrant, the hearsay evidence complained of might properly have been heard by the court, in the absence of the jury, to enable the court to determine if "probable cause" existed for making the search and therefore authorized the result of the search to be detailed before the jury. But the present case is not of that character, and the hearsay evidence should not have gone to the jury.
For the reason stated, the judgment is reversed and the cause remanded.
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...sustained when the state offered to prove the result of the search. Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Sutton v. State (Tex. Cr. App.) 300 S. W. 639, in which are collated many cases. However, appellant seems to have lost the benefit of his bills by going on the witness s......
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