The plaintiff in error, hereinafter called defendant, was charged in the county court of *Page 92 Atoka county of having possession of whisky with the intent to sell. The jury returned its verdict finding him guilty, and assessing punishment at a fine of $500 and confinement in the county jail for 180 days. No briefs have been filed, and we have examined the record to ascertain if there is any fundamental error. The conviction rests on the testimony of the city marshal and a deputy sheriff. The substance of the evidence of these officers is that they went to the residence of the defendant, without any search warrant, and entered it, and that the defendant took up a sack containing a half gallon of whisky and ran out the back door. He was followed and arrested. They testified that the reputation of the place was bad. Upon the trial the defendant objected to the evidence of this witness as having been procured by an unlawful search and an unlawful invasion of his residence; that the entry into the home of the defendant in the manner as disclosed by the evidence, without a search warrant, was an invasion of his constitutional rights is too obvious for question. There was no reason apparent why a search warrant could not have been procured and the search have been legal, in which case this conviction would have been affirmed. But where the sole evidence relied upon as in this case was obtained by illegal acts, the conviction cannot stand.
The case is reversed.
BESSEY, P.J., and DOYLE, J., concur.