Tucker v. State

339 S.W.2d 64, 170 Tex. Crim. 113, 1960 Tex. Crim. App. LEXIS 2100

Opinions

DICE, Judge.

The conviction is for the unlawful possession of wine for the purpose of sale in a dry area with two prior convictions for offenses of like character alleged for the purpose of enhancement ; the punishment, 4 years in jail and a fine of $4000.

The disposition hereof makes a summary of the facts unnecessary.

Formal Bill of Exception No. 2 certifies that on the trial of the cause the state introduced into evidence before the jury the affidavit for the search warrant over the timely objection of the appellant.

The affidavit was clearly hearsay and, under the record presented, its admission in evidence was error and calls for a reversal of the conviction. 37-B Tex. Jur. 489, sec. 36; 3 Branch’s Ann. P. C. 2d 106, sec. 1335; Hall v. State, 136 Tex. Cr. R. 320, 125 S.W. 2d 293; Byars v. State, 154 Tex. Cr. R. 515, 229 S.W. 2d 169; Hebert v State, 157 Tex. Cr. R. 504, 249 S.W. 2d 925 McGowan v. State, 158 Tex. Cr. R. 319, 255 S.W. 2d 512; Hicks v. State, 167 Tex. Cr. R. 115, 318 S.W. 2d 652; and Zorn v. State, 167 Tex. Cr. R. 502, 321 S.W. 2d 90.

The record further shows that state’s counsel was permitted, over appellant’s objection, to question a witness for the appellant with reference to certain forfeiture proceedings filed against appellant’s two automobiles. Such an inquiry was irrelevant to any issue in the case and upon another trial should not be permitted.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.