The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woodward county on a charge of having the unlawful possession of whisky and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.
Defendant occupied an apartment at a rooming house in the city of Woodward with his family in which house were several other apartments. Defendant's family was away and he had a guest. The proprietor called the police who went to the apartment house and the proprietor directed him to defendant's apartment and claimed they were making a noise and disturbing other occupants of the house. They went there and hearing some loud talking inside entered, arrested defendant, and took him to the city hall and preferred charges against him. They later returned to the apartment house and with the consent of the proprietor entered defendant's rooms, searched them, *Page 39 and found about a gallon and a half of whisky. The police officers had no warrant or search warrant. The defendant contends the search of his residence was unlawful. The contention must be sustained. At the time the police officers entered the residence of defendant he was committing no offense in their presence and the entry and subsequent search are in violation of section 30, art. 2, State Const.
The case is reversed, and remanded with instructions to dismiss.