Becker v. State

164 N.E. 27, 200 Ind. 397, 1928 Ind. LEXIS 89

Opinion

Martin, C. J.

The errors assigned in this appeal from a conviction of appellant on a charge of unlawful possession of intoxicating liquor, (under §4, ch. 48, Acts 1925, §2717 Burns 1926), present the question of the admissibility in evidence of liquor seized and information gained by officers while making a search of appellant’s premises.

It appears from the record that the search warrant (issued under §31, ch. 48, Acts 1925, §2746 Burns 1926), by authority of which appellant’s premises were searched, was issued without a sufficient showing that reasonable and probable cause for the search existed, either by a positive affidavit alleging facts or by a hearing of evidence by the issuing magistrate. The affidavit was upon information and belief and the magistrate heard no evidence. In such a case, under the rule established by Wallace v. State (1927), 199 Ind. 317, 157 N. E. 657, (Martin and Gemmill, JJ., dissenting), the evidence obtained by the search is inadmissible, and, upon the authority thereof, this judgment is reversed, with directions to grant appellant’s motion for a new trial.