*1 31 McTyre The State. Lester Delivered 1929. No. June states the case. opinion Pleasant for J. Mt. H. French of and J. A. Ward of Daingerfield appellant. Canton, Attorney,
A. A. Dawson State’s for the State. Presiding MORROW, offense is Judge. —The pun- of mash for purpose manufacturing intoxicating liquor; at ishment fixed confinement in the for one year. penitentiary warrant, a search officers searched under Operating mansion, his an outhouse about consisting mansion, house, and an inclosure land feet a chicken from about 125 east of the yards mansion. In the inclosure mentioned the officers found mash and other material and articles suitable for *2 and adapted However, of this making intoxicating liquor. was anot of the part and search curtilage was pasture per- missible without a warrant, and is what hereafter said is not to be to the search of the applied pasture. See Wolf S. W. In the mansion there was found con- half-gallon jar a small taining of Other quantity whisky. circumstances tending connect the with the appellant manufacture of liquor intoxicating his upon not material premises, recite, were disclosed the by officers.
The receipt evidence was attacked the upon search inwas violation of the state, Constitution and statutes of the and that its was 727a, inhibited Art. receipt P., 1925, C. by C. which renders inadmissible evidence obtained search. through illegal The affidavit which the search warrant was upon based described as a residence of the private in Morris place appellant, situated Texas, three about miles in a County, direction from southwesterly the town of Daingerfield. attack
The is affidavit untenable. It affirma- contained tive and detailed statements the information touching which the sufficient based with the law comply defining “prob- able cause.” See 107 Tex. Chapin Crim. 477. The Rep. search warrant commanded the officers to search the resi- dence, and outbuildings premises occupied by The appellant.” taken position is that appellant affidavit was capable the search warrant supporting for the search aof but that that part warrant which authorized the search of the and outbuildings premises occupied by was not sup- affidavit; ported by the variance between the affidavit and the search warrant rendered the search of the and buildings prem- ises other than the mansion house A illegal. description to be searched in the affidavit and in the warrant anis essen- tial of a requisite valid warrant. It is so in the Bill declared I, Art. 9, Rights, Sec. of the Texas Constitution wherein it is said:
“No warrant to search or to seize any or place, any person thing, shall issue be, without them as near as describing nor without may cause, oath or affirmation.” probable supported by description affidavit limits place controls Seizure, description warrant. See Cornelius on Search & sec. also p. sec. 116. page C., 1925, Art. P. it is that a search warrant declared
be may issued for the intoxi- purpose seizing destroying any sold, cating liquor sold, or manu- possessed or to be transported factured in law,'and violation of the in- seizing destroying strumentalities for manufacture, sale transportation but as to a liquor, residence,” this is used: language “No warrant shall be issued to search a private dwelling occupied such, unless some store, it is part used as a hotel or board- shop, house, ing or for some residence, other than a unless the affidavits two credible show that such residence is a sold manufactured in viola- tion of the terms of this act.”
In the arises, instance the present Does the question description to be affidavit, searched as contained in place the the namely, residence of the private appellant, embrace the other of his parts which were described in the warrant and which were 691, searched the officers? In Art. the passing intention supra, to make a distinction in the form substance Legislature and of a an for search warrant as between a private as such and other occupied seems clear. To places search place other than a under Title private Code of Criminal dwelling Procedure is made a 691, of Art. (which part so far as supra, may the affidavit for a search be) warrant under the oath but one of sufficient, credible would be person and warrant issue author- may the search sold, for izing intoxicating possessed, liquor transported containers, manufactured, instrumentalities the manu- for for facture, transportation sale; for while unlawful the search aof the warrant shall issue dwelling only upon the affidavits of two credible that such residence is showing place is sold in violation manufactured the case, law. 350, We have held Wolf’s 9 S. W. an unreasonable search is one which trenches en- upon peaceful of the house in joyment which he dwells or in which he works and business, does and those therewith, connected things as gardens, outhouses, for the domestic appurtenances necessary comfort house or that in which the dwelling business is conducted. limitations, In its is immunity intended to that analogous which applies of which the common curtilage law and does speaks, not render unreasonable woods, fields, the search of ravines or open house or dwelling of business connected with place not so
spaces That is to say, unless the same individual. owned by search an unreasonable within purview be searched comes a warrant. be made without indicated, the search may above dwelling,” “private of the term “private meaning Touching'the and ap- are numerous house,” the precedents residence” or “private in Corpus Juris, them are collated Many conflicting. parently 17, 437. The conflict 843-844, prob- p. and Vol. Yol. pages are analyzed than real when precedents more apparent ably men- in the decisions in the of the facts controlling considered light residence” confine the term “private tioned. Many precedents others extend house alone while to the mansion dwelling” the statute within the interpreting it to the localities curtilage. mentioned fur- the precedents consideration (Art. supra) under the statute From the language per- nish but incomplete guide. residence upon other than a private a search of places mitting which the numerous and limiting grounds grounds not used for other pur- as such and occupied dwelling use of must follow the conclusion is permitted, poses statute, residence” or “private dwelling” the term “private the mansion house no more than to include meant the Legislature it a To it situated. give which was the ground itself and of the Legisla- the evident purpose thwart would broader meaning This is true for Art. supra. in the enactment ture as used in term if that within reason then to search the outhouses and appurtenances, is included statute *4 within curtilage, the outhouses appurtenances one of any re- would be for a private dwelling and warrant requisite that is, credible on ground that made by quired, was sold or was a place intoxicating liquor construction, there if law. Under such in violation of manufactured in of the outhouses for that one believing was cause” “probable residence, there was intoxicating surrounding the yards sale, the manu- or instrumentalities for the possessed purpose for no secu'chwarrant intoxicating liquor, or transportation of facture in Art. issue, the conditions supra, could because prescribed would not exist. for the search of private dwelling as predicate the term However, a construction which confines the statute giving free, house, the would be to the mansion State dwelling” to issue a search war- one credible person, with an affidavit made by in to search any the statute rant named any grounds save the dwelling. premises the search warrant to conclude are therefore constrained We the place an affidavit describing in the instance based present any searching as a would not be authority searched which were except of the appellant house, found, in that to mansion house there was according no that therein sold evidence were testimony, liquors It follows that the evidence in the obtained manufactured. inadmissible, was and that appurtenances judgment conviction based thereon must be It so reversed. ordered.
Reversed and remanded. CONCURRING OPINION.
HAWKINS, concur in the Judge. opinion Judge Presiding —I Morrow as to the questions discussed and the reversal of the legal In order avoid judgment. to any possibility misunderstanding I think it is not that the officers say observed improper appellant from the direction of between coming which and the house pasture was a cotton patch; the officers testified that “back they tracked” ap to a within fifteen or pellant point of where twenty five barrels steps were found which had contained recently mash “whisky ready run.” Mash was still on the flowing where the barrels had been overturned. This recently was found in a and the evi pasture dence 'it was admissible regarding without search warrant. Wolf State, 9 W. S. did not but Appellant testify his wife gave evidence which made an issue to whether from the coming where the mash was found. The evidence which was admitted as improperly outhouse finding jugs the unmistakable odor of bearing could been whisky have and doubt less was appropriated by jury the mash was determining more appellant, particularly, for which he it. This possessed would prevent an affirmance on the judgment State, announced Gurski v. principle 93 Tex. 612; Cr. R. Turner v. 95 Tex. Cr. R. Cartwright 97 Tex. Cr. R. and other like cases. facts of the case would call for the present application rule that recognized *5 admission evidence material and a illegal to contro pertinent issue, verted in evidence, and which is addition facts legally erroneous hurtful and that a conviction under circum such stances not should be to stand. See McWilliams permitted v.
36 Tex. authorities S. W. Kelsey
therein referred to.
MODIFYING OPINION. LATTIMORE, refrain from cannot Judge. expressing —I the correctness serious doubt of giving expression “pri- placed residence” the limited interpretation vate dwelling” viz., it the actual on Brethren this it to by my opinion, restricting stands. house and the on which same family occupied It seems me to more consonance with exemp- residence, tions such in both the Constitution and decisions regarding courts, hold expression “private —to to, does, and it include those outhouses and intended appurtenances a to the use and residence as the home necessary occupancy case the of articles in chicken house family. finding a search under based on an warrant yard by admissible, be residence would case only reversed, but I do not care to file a should not be dissenting opinion. Beasley H.
A. State. 12452. Delivered March 1929.
No. granted Rehearing June