
    James Sowers v. State
    No. 27,103.
    November 3, 1954
    
      William E. Hart, Athens, for appellant.
    
      Wesley Dice, State’s Attorney, Austin, for the state.
   BELCHER, Judge.

Appellant was convicted for the unlawful possession of wine in a dry area for the purpose of sale after a prior conviction for an offense of like character alleged for the purpose of enhancement; the punishment, six months in jail and a fine of $300.

The state’s testimony shows that while appellant was driving his automobile on the streets of Athens, Texas, he was stopped by Joe McGee, Chief of Police, who, on looking in appellant’s automobile, found eight-fifths of wine on the floor board.

On further development of the state’s case before the jury, the witness J. W. Brownlow testified to a police radio conversation which he had with Officer McGee, as follows: “I radioded him and told him that I just had a call from a lady that James Sowers had just delivered a fifth of wine on North Prairieville was coming back on North Palestine, if he would cut across and go down that way, he would probably catch him,” and to the introduction of such testimony appellant objected upon the ground that it was hearsay which was overruled, and to such ruling appellant excepted.

This testimony was hearsay and should have been excluded from the jury and its admission in evidence calls for a reversal of the judgment. Starkey v. State, 115 Texas Cr. R. 552, 27 S.W. 2d 175; Martin v. State, 151 Texas Cr. R. 140, 205 S.W. 2d 599; and Hodge v. State, 152 Texas Cr. R. 395, 214 S.W. 2d 469.

The court, under the facts of this case, should have heard the evidence in the absence of the jury on whether probable cause existed for the search. 38 Texas Jur. 98, Sec. 68; and Maxwell v. State, 121 Texas Cr. R. 190, 51 S.W. 2d 334.

The judgment is reversed and remanded.

Opinion approved by the court.  