Schenk v. State

Court of Criminal Appeals of Texas

Schenk v. State

6 S.W.2d 117, 109 Tex. Crim. 544, 1928 Tex. Crim. App. LEXIS 350

CourtCourt of Criminal Appeals of Texas

DecidedMay 2, 1928

DocketNo. 11774.

StatusPublished

This text of 6 S.W.2d 117 (Schenk v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schenk v. State, 6 S.W.2d 117, 109 Tex. Crim. 544, 1928 Tex. Crim. App. LEXIS 350 (Tex. 1928).

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Opinion

HAWKINS, Judge.

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 be found in 106 Tex. Crim. Rep. 564, 293 S. W. 1101.

The only testimony came from an officer who made the search of appellant’s premises by virtue of a search warrant and found in a hen-house near appellant’s residence a quantity of whiskey 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. Crim. Rep. 477, 296 S. W. 1095. Many cases following Chapin will be found noted in Sutton v. State, 300 S. W. 630. More recent cases are McLennan v. State, 3 S. W. (2nd) 451; Stevenson v. State, 2 S. W. (2nd) 453; Dixon v. State, 2 S. W. (2nd) 272.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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HAWKINS, Judge.

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 be found in 106 Tex. Crim. Rep. 564, 293 S. W. 1101.

The only testimony came from an officer who made the search of appellant’s premises by virtue of a search warrant and found in a hen-house near appellant’s residence a quantity of whiskey 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. Crim. Rep. 477, 296 S. W. 1095. Many cases following Chapin will be found noted in Sutton v. State, 300 S. W. 630. More recent cases are McLennan v. State, 3 S. W. (2nd) 451; Stevenson v. State, 2 S. W. (2nd) 453; Dixon v. State, 2 S. W. (2nd) 272.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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6 S.W.2d 117, 109 Tex. Crim. 544, 1928 Tex. Crim. App. LEXIS 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schenk-v-state-texcrimapp-1928.

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