ON MOTION FOR REHEARING.
MORROW, Presiding Judge.The right to consent to the search is in the person whose property or effects are to be searched. By his voluntary consent he waives the right to oppose the proof of the result of the search upon the ground that it was unauthorized. The question of fact touching consent should be approached and viewed with the presumption that the officer possessing a search warrant acted under its authority. Proof of the result of an illegal search is inhibited by article 727a, C. C. P., 1925. When, as in the instant case, the state relies upon evidence acquired in a search without a warrant, it is charged with the burden of proving the waiver.
In the present instance, the officers possessed a search warrant. According to the testimony, one of them said to the appellant: “Henry, they are telling bad tales on you. We came out to look the place over.”
Appellant said: “All right, come on in, you are perfectly welcome.”
According to the officers, at the time these remarks were made, no search warrant had been exhibited nor mentioned; that after beginning the search they did produce and deliver the search warrant to the appellant.
*223According to the appellant’s testimony, when the officers arrived, one of them said: “Hello, Henry, they are telling bad tales on you. I have a search warrant for your premises.”
Appellant then said: “All right Mr. Hawkins, let’s see it.” The officer handed the warrant to the appellant. After reading the warrant the appellant said, “All right, go ahead”. Appellant said he thought the search warrant was valid, but he made no agreement to search until after they produced the warrant. The officers claimed, however, to have found intoxicating liquor upon the premises. This the appellant denied. If the appellant’s version was true, the search was illegal. From the conflict there arose a question of fact for the jury to answer. Perceiving no fault in the charge of which complaint is made, this court is bound by the verdict sustaining the version of the state’s witnesses upon the subject of waiver.
We are constrained to overrule the motion for rehearing, and it is so ordered.
Overruled.