164 N.E. 27 | Ind. | 1928
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 *398
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),
