ON MOTION FOR REHEARING.
MORROW, Presiding Judge.Bill of exception No. 2 carries the proposition that the affidavit for the search warrant is inadequate to authorize the search for the reason that it does not comply with that part of article 691, P. C., 1925, requiring that the affidavit of two credible persons show that such residence is a place where intoxicating liquor is sold or manufactured. The affidavit of O’Bar and Mills is in the form of a direct statement describing the premises as a place where intoxicating liquor is unlawfully sold or manufactured. However, the contention of the appellant is not sound for the additional reason, namely, that by the affidavit and facts proved the case is brought within the purview of the exception to the principle relied upon which occurs in article 691, supra, in these words: “No warrant shall be issued to search a private dwelling occupied as such, unless some part of it is used as a store, shop, hotel or boarding house, or for some purpose other than a private residence, etc.”
By the averments in the affidavit and the proof upon the trial, it appears that the premises searched were used not only as a dwelling but as a place of business; namely, a filling station and for the sale of intoxicating liquors. The case of Renfro v. State, 59 S. W. (2d) 416, is deemed in point.
In approving bill of exception No. 1, the court refers to the statement of facts. In the motion for rehearing, appellant takes the position that the use of the word “premises” amounted to a conclusion of the witness that the place where he found the articles mentioned was in possession of the appellant. On direct examination, according to the statement of facts to *136which the court refers in qualifying the bill, the witness testified that he drove to a filling station, rushed into the house, and found a young man drinking beer; that he then went out nineteen steps from the house and found a case of beer and went west and a little south to some shrubbery and got a half-gallon and a pint of whisky.
The affidavit for the search warrant contains the following:
“* * * That in and upon certain premises in Justice Precinct No. 1, in the aforesaid County and State and more particularly described as follows, to-wit:
“(a) A. One Story Wooden Building, and being a residence, store and filling station combined, and all out building and premises appurtenant thereto.”
The evidence shows that the lot upon which the house was situated as 52 feet wide and 115 feet deep. Appellant testified that he did not rent any property nineteen steps southeast, southwest, or south from his house, and exercised no control over that part of the premises. The officer who testified said that to the place where he found the beer in the container to which he testified on direct examination there was a trail which practically ended at the place where the beer was found. The term “premises,” as it applies to a dwelling, is discussed in the case of Wolf v. State, 110 Texas Crim. Rep., 124, and subsequently discussed in other opinions of this court. See Comeaux v. State, 42 S. W. (2d) 255; Dikes v. State, 48 S. W. (2d) 259.
Upon re-examination of the record, the opinion is entertained that the proper disposition of the appeal was made upon the original hearing.
The motion for rehearing is overruled.
Overruled.