The plaintiffs in error were convicted in the county court of Oklahoma county on a charge of maintaining a place where intoxicating liquors were kept for the purpose of violating the prohibitory liquor law, and were each sentenced to pay a fine of $50 and to serve 30 days in the county jail.
Before entering upon the trial plaintiffs in error filed a motion to suppress the evidence for the reason that it had been obtained by an unlawful search, which motion was overruled and exceptions saved. The record discloses that certain officers, in the nighttime, went to the private residence of plaintiffs in error and made a search of the premises and of the person of Mrs. Dave Myers, one of the plaintiffs in error, and found on her person a pint of whisky. The affidavit for a search warrant upon its face states that it is made upon information and belief. It is invalid and the warrant based upon it invalid, and the evidence procured by such invalid search warrant is incompetent. The motion to suppress should have been sustained.
The case is reversed and remanded.
DOYLE, P.J., concurring.
DAVENPORT, J., absent, not participating. *Page 289