(dissenting).
In Pruett v. State, 463 S.W.2d 191 (No. 43,193) this court in a unanimous opinion upheld the constitutionality of Article 524, V.A.P.C., under which this appellant is charged with the offense of sodomy, despite the opinion of the three judge federal court in Buchanan et al. v. Charles Batchelor, et al., 308 F.Supp. 729 (N.D.Tex.) to the contrary.1 It is not upon this ground that I dissent to the affirmance of this case.
Admission of Extraneous Offenses
In his first ground of error appellant contends the trial court erred in permitting the State to introduce into evidence pictures depicting offenses extraneous to that for which he was tried (State’s Exhibits 3 through 22) seized in a search of his home some four months after the alleged offense.
“The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.” Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836. See also 23 Tex.Jur.2d, Evidence, Sec. 194, p. 294. There are exceptions to the general rule.
In 23 Tex.Jur.2d, Evidence, Sec. 195, p. 300, it is written:
“Evidence of the commission of other crimes by the accused is admissible as part of the res gestae or to show identity of person or crime, intent, motive, scien-ter, system, and malice. Evidence of other crimes is also admissible to discredit the accused when he testifies in his own behalf, or to show his failure to have reformed, or to controvert a defensive theory advanced by him. These exceptions to the general rule prohibiting evidence of other crimes are discussed in greater detail immediately hereinafter. It must be remembered, however, that even though evidence of another crime may be relevant to the instant proceeding, such evidence should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to have been its perpetrator.” See also Sumner v. State, 133 Tex.Cr.R. 501, 112 S.W.2d 453.
There are occasions though when the exceptions do not come into play.
Only recently in Hafti v. State, 416 S.W.2d 824, this court, speaking through Judge Belcher, said:
“The rule appears to be consistent that if the testimony of the state leaves no question as to intent or identity of the defendant, proof of an independent crime is not admissible. Also, where there is positive testimony to support the state’s case, proof of other independent offenses is not admissible. 1 Branch 2d 200, Sec. 188; 5 Branch 2d 31, Sec. 2601; 23 Tex.Jur.2d 306, Sec. 197; Story v. State, 107 Tex.Cr.R. 266, 296 S.W. 296; Taylor v. State, 138 Tex.Cr.R. 161, 134 S.W.2d 277; 42 A.L.R.2d 854.”
“Furthermore, if the evidence presented by the state leaves no doubt as to the identity of the accused or his connection with the offense charged, evidence concerning his commission of other crimes is inad*146missible.” 23 Tex.Jur.2d, Evidence, Sec. 197, p. 306. See also Chandler v. State, Tex.Cr.App., 417 S.W.2d 68; Kelley v. State, 79 Tex.Cr.R. 362, 185 S.W. 570, 80 Tex.Cr.R. 257, 190 S.W. 173; Cano v. State, 88 Tex.Cr.R. 271, 225 S.W. 1097; Story v. State, 107 Tex.Cr.R. 266, 296 S.W. 296; Ball v. State, 118 Tex.Cr.R. 579, 39 S.W.2d 619 (overruled on another point); Martinez v. State, 140 Tex.Cr.R. 159, 153 S.W.2d 721; Taylor v. State, 138 Tex.Cr.R. 161, 134 S.W.2d 277.
In the case at bar the complaining witness Williams clearly identified the appellant and described in detail the'act of oral copulation which formed the basis of this prosecution. State’s witness Neil, an eye witness to the act, also identified the appellant. The State also introduced a photograph showing the appellant committing the very act of sodomy on Williams with which he was charged as well as a notebook which Williams was examining during the act alleged.
The appellant did not testify nor offer any defense. There was positive proof of the State’s case. No issue as to identity, intent, system, design, etc., was raised even by cross-examination or otherwise. There was no defensive theory to rebut, this was not a circumstantial evidence case, and the extraneous offenses were not a’part of the res gestae. There was no evidence in the record that State’s Exhibits 3 through 22 were at any time used or exhibited during the commission of the alleged offense or were even in existence at that time. Neither Williams nor Neil identified such exhibits.
Under these circumstances,. I cannot agree that State’s Exhibits 3 through 22 were admissible in evidence. Surely the mere plea of not guilty to the charge of sodomy under the first mode of Article 524, V.A.P.C., is not sufficient to authorize proof of extraneous offenses demonstrating that the accused is a criminal generally. Can it be said in view of the evidence offered such extraneous offenses, etc., were needed to demonstrate the probability of the act charged and the unnatural attention to the complaining witness? I think not.
The majority cites Johnston v. State, Tex.Cr.App., 418 S.W.2d 522, but there the defendant testified and offered the defense of being “framed” which clearly authorized the admission of extraneous transactions. And there was no photograph of the actual offense charged.
The court reversibly erred in admitting evidence of such extraneous offenses. For this reason I would reverse. There is more.
The Validity of the Affidavit for the Issuance of the Search Warrant
In his second ground of error appellant contends the trial court erred in admitting, over objection, the fruits of the search of appellant’s home. This contention is based in part on the claim that the affidavit upon which the search warrant issued is insufficient to show probable cause.
The affidavit upon which the search warrant issued reads:
“We, D. E. Bynum and J. M. Curtis, do solemnly swear that heretofore, on or about the 28th day of September, A.D., 1967, in said County and State, One William C. Kemp and person or persons unknown did then and there unlawfully possess obscene articles and materials, to-wit: lewd, obscene and indecent photographs and materials and we have cause to believe and do believe that said obscene articles and materials are now concealed by William C. Kemp and person or persons unknown in a one story brick and frame house situated in Dallas County, Texas at 1426 Summertime Lane, City of Dallas, Dallas County, Texas which said William C. Kemp and person or persons unknown occupies, possesses, controls and has charge of.
*147“MY BELIEF AS FORESAID IS BASED ON THE FOLLOWING FACTS:
(A) We have been informed of the existence of the foregoing set out facts by reliable, credible and trustworthy citizen of Dallas, Dallas County, Texas,
(B) and further Officers have received information in the past twenty-four hours from an informant that he has been in the residence of William C. Kemp at 1426 Summertime Lane and has observed lewd and indecent pictures and photographs of men and boys in the act of sodomy by both oral copulation and anal copulation, of men and women in the act of intercourse and sodomy, of women committing sodomy on other women. Informant further states that William C. Kemp_lewd and indecent films which he shows to juveniles who come to his house and that he takes photographs of these boys in the nude and in the act of sodomy.
“WHEREFORE, (We) ask that a warrant to search for and seize the said obscene articles and materials be forrnth issued in accordance with the law in such cases provided.
“J. M. Curtis
“D. E. Bynum
“Sworn to and subscribed before me by D. E. Bynum and J. M. Curtis on this the 28th day of September, A.D. 1967.
“Justice of the Peace, Precinct No. 7 Place 1, Dallas County, Texas.”
A careful reading of such affidavit reveals that the alleged probable cause is based solely upon hearsay unaided by any independent corroboration or surveillance or personal knowledge of the affiants.
The majority seizes upon the first paragraph of the affidavit to indicate some personal knowledge on the part of the affiants citing Gaston v. State, Tex.Cr.App., 440 S.W.2d 297, cert. den. 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435. I find nothing in the majority opinion in Gaston to indicate this is a similar case.2 It is true that the af-fiants do not state they rely entirely upon an informant’s hearsay, but it is also true they do not state the contrary. In fact, they swear “My belief as foresaid is based on the following facts.” The facts which follow are clearly hearsay. To support the conclusion that the affiants had no personal knowledge one need only to look to the testimony of one of the affiants (Police Officer Bynum) set forth in the majority opinion.3
Since, in my opinion, the probable cause is based entirely upon hearsay, we must determine if the affidavit meets the two pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
*148The affidavit clearly fails to meet the latter half of the double barrelled requirement of Aguilar.
In Aguilar the Court wrote:
“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, [78 A.L.R.2d 233,] the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, [11 L.Ed.2d 887,] was ‘credible’ or his information ‘reliable.’ Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, supra, 357 U.S. at 486, 78 S.Ct. at 1250; [2 L.Ed.2d at 1509;] Johnson v. United States, supra, 333 U.S. at 14, 68 S.Ct. at 369, [92 L.Ed. at 440,] or, as in this case, by an unidentified informant.” (emphasis supplied)
In the case at bar the affidavit states the affiants have been informed “by reliable, credible and trustworthy citizen of Dallas, County, Texas.” The affiants did not attempt to support their claim that their informant was “reliable” by any underlying circumstances.
In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, the affidavit stated the FBI had been “informed by a confidential reliable informant” without further description of the informant.
There the Court said:
“Though the affiant swore that his confidant was ‘reliable,’ he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact that Aguilar’s other test has not been satisfied. * * * ”
For the reasons set forth in this writer’s concurring opinion in Gaston v. State, Tex.Cr.App., 440 S.W.2d 297, the mere statement that the source of the hearsay was “reliable, credible,” etc., offered no substantial basis for crediting the hearsay. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. Since the second prong of the Aguilar test was not met, there is no need to consider whether the affidavit was sufficient to meet the first prong since both must be satisfied if probable cause is based entirely on hearsay. See also Ruiz v. State, 457 S.W.2d 894 (No. 42,439), concurring opinion, footnote No. 2. Thus, another reason is presented for reversal.
Other Matters Relating to Search and Seizure
It is further observed that the mere private possession of obscene photographs is no longer a crime. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542. The statute in effect at the time of the search warrant in question was issued (Article 527, V.A.P.C., as amended 1961) was clearly unconstitutional in light of Stanley v. Georgia, supra, as to mere possession and the legislature quickly moved to amend the statute. See Article 527, V.A. P.C., as amended 1969.
In Ex parte Phelper, Tex.Cr.App., 442 S.W.2d 695, in holding that portion of Article 527, supra, under which Phelper was charged and convicted, unconstitutional, this court applied the holding of Stanley v. Georgia, supra, fully retroactive. Today the majority relies upon the 8th Circuit Court of Appeals’ opinion in United States v. Hanon, 428 F.2d 101, to uphold the validity of the affidavit for the search warrant despite the unconstitutionality of the statute and the holding in Phelper. I do not agree.
*149The record also reflects the search in question took place some four months after the alleged offense. The officers had no knowledge of such offense until they found in the search a picture of the alleged offense. Upon further investigation and by use of the photograph they finally succeeded in discovering the identity of the complaining witness. If the search was invalid, then a question is presented whether the discovery of the offense and identity of the complaining witness were not the “fruits of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307; Silverthorne Silvertone Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Santiago v. State, Tex.Cr.App., 444 S.W.2d 758. See also University of Pennsylvania Law Review 1136; “The Fruits of the Poisonous Tree Revisited and Shepardized,” 56 Calif.Law Review 579.
The search being illegal, the court erred in admitting its fruits.
For the reasons stated, I would reverse and remand.
. The decision of the three-judge court is not final. Direct appeal is pending in the Supreme Court of the United States in Cause No. 289, styled Henry Wade et al v. Alvin Leon Buchanan et al., Also, Cause No. 290 O.T. 1969, styled Buchanan and Strickland v. Wade, is still pending before the Supreme Court.
. If it be the majority’s intent to rely upon this writer’s concurring opinion then attention is directed to footnote #2 of this writer’s concurring opinion in Ruiz v. State, 457 S.W.2d 894 (No. 42,-439).
. Officer Bynum, one of the affiants, testified, in the absence of the jury, on the issue of probable cause. He related that on September 28, 1967, a 15 year old with whom he was not previously acquainted and who was under detention at the Dallas County Juvenile Department as a “runaway and incorrigible corrigible” communicated to him the information which formed the basis of the affidavit for search warrant. There can, of course, be no reliance upon such testimony given at the time of the trial to support probable cause for the issuance of a search warrant by the magistrate. Such evidence was not (1) shown to have been given to the magistrate or (2) if it was, it was not shown to have been under oath, and (3) was not included in the affidavit for a search warrant. Fourth Amendment, United States Constitution ; Article I, Sec. 9, Texas Constitution ; Articles 18.01, 18.02 and 18.21, V.A.C.C.P.; Hall v. State, Tex.Cr.App., 394 S.W.2d 659; McLennan v. State, 109 Tex.Cr.R. 83, 3 S.W.2d 447; 100 A.L.R.2d 525, 531. See particularly concurring opinions in Gaston v. State, Tex.Cr.App., 440 S.W.2d 297, 301 and Ruiz v. State, 457 S.W.2d 894 (No. 42,439).