DISSENTING OPINION. I respectfully dissent for two reasons. I believe: (1) That the majority of the court was in error in Wallace v. State (1927), 199 Ind. 317, 157 N.E. 657, the authority upon which the decision herein is based, and that the same should be overruled; and (2) that the question presented here is different from that stated in the prevailing opinion and that such question is not settled adversely to the state by the Wallace case.
From a careful examination of the record it appears that the question: "Did the Mayor of Frankfort issue the search warrant in question upon a showing of probable cause?" was not the one presented by appellee to the trial court, but that objections, made in his motion to quash, raised only the question of the sufficiency of the affidavit for the search warrant. Among other reasons, appellee, in his said motion, alleged that the affidavit did not set forth any facts constituting probable cause, was not based upon personal knowledge, did not particularly describe the place to be searched or the property and things to be searched for — but there were no allegations, as in the Wallace case that there was no hearing of evidence by the issuing magistrate and that *Page 176 he received no statement of facts under oath or affirmation of the ground or reasons to show probable cause, other than the affidavit, which was upon information and belief. The Wallace case did not decide that an affidavit for a search warrant upon information and belief was invalid but that a writ, based "wholly . . . only and solely" upon such an affidavit and "not on any other additional facts or information whatever" was invalid.
In opposition to the motion to quash for reasons which did not question more than the sufficiency of the affidavit for the search warrant, it was not incumbent upon the state to show what evidence the Mayor had before him at the time he issued the warrant. The affidavit was shown to be in all things sufficient and correct, and I believe the lower court erred in sustaining the motion to quash.
Gemmill, J., concurs.