Schenk v. State (6 S.W.2d 117, 1928)

HAWKINS, J.

Conviction is for possessing intoxicating- liquor for the purpose of sale; punishment being assessed at one year in the penitentiary. This is the second appeal. The former opinion will he found in 106 Tex. Cr. R. 564, 293 S. W. 1101.

The only testimony came from an officer who made the search of appellant’s premises bj- virtue of a search warrant and found in a henhouse near appellant’s residence a quantity of whisky in half-gallon fruit jars. The evidence of this witness was objected to because the search warrant was based upon an affidavit which upon its face shows to have been made solely upon “information and belief,” without stating any fact or information upon which such belief was founded. The affidavit is made a part of the bill of exception and verifies the truth of the objection urged. The evidence should have been rejected. Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095. Many cases following Chapin will be found noted in Sutton v. State (Tex. Cr. App.) 300 S. W. 639. More recent cases are McLennan v. State (Tex. Cr. App.) 3 S.W.(2d) 447; Steverson v. State (Tex. Cr. App.) 2 S.W.(2d) 453; Dixon v. State (Tex. Cr. App.) 2 S.W.(2d) 272.

The judgment is reversed, and the cause remanded.

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