On November 13, 1923, appellee, in the court below, was, by indictment, charged with possessing a certain still, device and property for the manufacture of intoxicating liquor, intended for use in violation of the laws of this state. Acts 1923 p. 107, § 1. On February 9, 1924, appellee moved the court to quash the search warrant issued July 30, 1923, and to suppress the evidence obtained thereby, which motion the state unsuccessfully sought to have appellee make more specific. On February 11, 1924, the state's motion to strike out and dismiss appellee's motion to quash and suppress evidence was overruled, and thereupon the state answered by a general denial and by an affirmative answer in bar of the motion to quash. The issue thus joined was submitted to the court for trial and, upon the evidence heard, the court found for appellee, sustained his motion to quash the search warrant, and suppressed the evidence thus obtained. Appellee was then arraigned, and upon his plea of not guilty, the cause was submitted to a jury for trial, and, at the close of the state's evidence, the court instructed the jury to find for the defendant. The jury returned a verdict of not guilty. The state appealed, and in this court relies solely upon the assigned error of the court in sustaining appellee's petition to quash the search warrant and in suppressing the evidence obtained by means of the search warrant.
Appellee has not favored us with a brief, but, from his motion to quash and from appellant's brief, we learn that the question submitted to the court for trial and material to this appeal was: Did the mayor of Frankfort issue the search warrant in question upon a showing of probable cause?
The only evidence introduced tending to show probable cause was the affidavit of a police officer, stating that he had reason to believe and did believe that this appellee *Page 175 had in his possession intoxicating liquor kept with intent to sell, and that he had in his possession stills, implements, devices and property kept for the manufacture of intoxicating liquor intended for use in violation of the laws of the state, and, upon this affidavit alone, the search warrant in question was issued by the mayor of Frankfort.
The question thus presented has been decided adversely to the state's contention. Wallace v. State (1927), 199 Ind. 317,157 N.E. 657. Upon the authority of that case, the judgment in the instant case is affirmed.
Martin and Gemmill, J.J., dissent.