
    ALLMAN v. STATE.
    (No. 11081.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    1. Criminal law <&wkey;4!9, 420(10) — Sheriff’s testimony that policeman, since deceased, told him privately that negro purchased whisky at certain premises held inadmissible as hearsay.
    In trial for possessing intoxicating liquor, sheriff’s testimony that he went to premises because city policeman, since deceased, told him that negro, taken there by policeman, purchased whisky, held inadmissible as hearsay; none of parties being present at time of conversation.
    2. Criminal law <&wkey;ll69(l) — Admission of sheriff’s testimony that policeman told him that negro purchased whisky at certain premises held prejudicial error, in view of testimony that defendant was present at time.
    Admission of sheriff’s hearsay testimony, in trial for possessing intoxicating liquor, that he went to premises because city policeman, since deceased, told him that negro, whom policeman took there to buy liquor, had gone in and got whisky, held prejudicial to defendant, where only direct testimony as to defendant’s knowledge of presence of whisky on premises was testimony that he was present when negro purchased whisky.
    3. Criminal Iaw<&wkey;723(l) — Argument of state’s counsel that neighbors were complaining of place where intoxicating liquor was found held improper.
    In trial for possessing intoxicating liquor, remarks of state’s counsel, in closing argument to jury, that neighbors were complaining of place where liquor was found, and-that he was trying to help them, held improper.
    4. Criminal law <&wkey;69!>-Guests or tenants, occupying room not searched, cannot complain of admission of evidence obtained by illegal search of premises.
    Guests or tenants, occupying room not searched for intoxicating liquor, cannot complain of admission of evidence obtained by search of other parts of premises under warrant not supported by affidavit showing probable cause.
    Appeal from District Court, Wilbarger County; Robert Cole, Judge.
    Howard Allman was convicted of unlawful possession of intoxicating liquor, and he .appeals.
    Reversed and remanded.
    Storey, Leak & Storey, of Vernon, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The home of Mrs. Sutton was searched by officers possessed of a search warrant. Besides Mrs. Sutton, there were in the house the appellant and his wife, and a man by the name of Stephens. Four half gallon jars containing whisky were discovered on the premises. If we comprehend the testimony, it is -to the effect that in the closet near the flue a hole had been cut in the floor, and the whis-ky was found underneath the floor. A witness named Fowler testified that upon one occasion he was present when a negro, by purchase, obtained" a bottle of whisky from the premises. Besides the witness, the other persons mentioned above were present. Appellant’s wife was a sister of the witness. The witness gave no details as to who delivered the whisky or from whence it came. He said he did not know.

Appellant testified that at the time of the alleged sale of whisky he was in another ■state; that at the time of the raid he and his wife were occupying a room in the house which they rented from Mrs. Sutton; that he had no knowledge that there was whisky upon the premises. He said:

“I was in the house as a guest when the officers arrested me. I had no connection with the liquor.”

Mrs. Sutton, in her testimony, claimed that her husband was addicted to the use of whis-ky; that he had been indicted for selling whisky, and had been gone about eight months; that before his indictment and departure she objected to his having whisky at his home, and in consequence of that attitude, when he had whisky there, he always hid it. She said she had no knowledge that there was whisky upon the premises, and knew nothing about a sale of whisky to a negro.

Appellant’s wife testified that she had no knowledge of the whisky; 'that they were occupying the room, and were asleep at the time the raid was made. The testimony is to the effect that the appellant and his wife had been married only a short time, and had been on the Sutton premises but a few days when the raid was made.'

Edmondson, the sheriff, testified in behalf of the state, and said he was caused to go to the Sutton premises by the fact that a city policeman came and told him that whisky was-being sold at the Sutton premises ; that the policeman had taken a negro there to buy some liquor; that the policeman remained outside of the house, obscured by the darkness, while the negro went in and got the whisky. It was shown by the bill of exceptions that none of the parties were present at the time of the conversation between the sheriff and the policeman; that at the time of the trial the policeman had been dead for some three months. We have perceived nothing that exempts this testimony from the operation of the rule which excludes hearsay testimony. The receipt of the testimony cannot be regarded as other than prejudicial to the appellant, for the reason that the only direct testimony which brings home to the appellant knowledge that there was whisky upon the premises is the testimony of the witness Fowler that the appellant was present at the time when the negro purchased a bottle of whisky on the premises. This was denied by the appellant, and the hearsay testimony mentioned was capable of appropriation by the jury, and was doubtless intended by the state to corroborate its theory that appellant ' was present when whisky had been sold upon the premises. The testimony was also in conflict with the appellant’s theory that he was without knowledge that there was whisky upon the premises or that any sale thereof had been made.

In his closing argument, state’s counsel made the following remarks to the jury:.

“That the neighbors around Mrs. Sutton’s were complaining of the place to the sheriff’s office, and that he (the attorney) was trying to help those people.”

Objection was addressed to the remarks; and the court was requested in writing to instruct the jury to disregard them, and refused. The remarks were similar to those held improper in the cases of Woolly v. State, 93 Tex. Cr. R. 384, 247 S. W. 865, and Clancy v. State, 93 Tex. Cr. R. 380, 247 S. W. 865, 27 A. L. R. 857. In both of these cases the argument was made the basis for the reversal of the judgment.

There are several bills of exceptions complaining of the refusal of the court to exclude the testimony of officers revealing the result of the search of the premises. These objections are based upon the ground that the search warrant was not supported by affidavit showing “probable cause” in compliance with the law. A discussion of the bills is not deemed necessary, for the reason that the appellant’s connection with the house was not shown to be such as to enable him to complain of the search. Apparently, his relation to the premises was not dissimilar to that of the appellant in the Craft Case (No. 9858; Tex. Cr. App.) 295 S. W. 617, not yet [officially] reported, in which, upon reason and authority there set forth, it was held that the right to demand the exclusion of evidence learned through a search made under an irregular or insufficient warrant is confined to the person whose rights were invaded and were not available to another. On the present facts, the search was made in the home of Mrs. Sutton. The appellant and his wife were in a room in which, according to the appellant, they were either guests or tenants. The evidence of which complaint is made was not obtained through a search of the room which they occupied.

For the reasons stated above, namely, the receipt of the hearsay testimony and the improper argument, the judgment is reversed and the cause remanded. 
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