
    BURKHART v. STATE.
    (No. 12456.)
    Court of Criminal Appeals of Texas.
    May 8, 1929.
    Patterson & Cates, of Decatur, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for tbe State.
   CHRISTIAN, J.

Tbe offense is transporting intoxicating liquor; tbe punishment, confinement in tbe penitentiary for one year.

Having received information that appellant and Jess Williams were transporting intoxicating liquor in an automobile, an officer searched a car occupied by tbe parties and found therein a large quantity of whisky. Williams was driving tbe car. Appellant bad no interest in tbe car. At tbe time tbe search was made appellant left tbe car and ran away, but returned before tbe search bad been completed. Tbe officers testified that appellant did not appear to have been drinking. Testifying in bis own behalf, appellant stated that be bad. gone to Cleburne with Williams for tbe purpose of getting a truck load of cattle; that Williams bad made arrangements at tbe bank to buy tbe cattle; that be did not know that Williams bad gotten whisky while on tbe trip; that be (appellant) bad no interest in tbe whisky and no interest in tbe car; that be bad exercised no control whatever over tbe whisky. A banker testified that Williams bad arranged with him to borrow money for tbe purpose of buying cattle. Other witnesses testified that appellant went with Williams to Cle-burne for tbe purpose of aiding him in securing a truck load of cattle.

It was not contended by appellant that tbe search of tbe automobile was illegal. While the officer bad no search warrant,.no objection was made to bis testimony on tbe ground that probable cause for tbe search without a warrant did not exist. Over proper objection tbe court permitted the state in tbe presence of the jury to elicit from the officer the fact that before searching the car driven by Williams and occupied by appellant be bad received a telephone message from an officer in a neighboring town, and that said officer bad stated to him that Williams and appellant bad gone to Glen Rowe after a load of whisky and would return on tbe evening of the next day. That this testimony was hearsay and bad tbe effect of contradicting appellant’s defensive theory is obvious. Appellant’s testimony was to tbe effect, as here-inbefore shown, that be bad no interest in tbe whisky, no control over it, and that he went with Williams on tbe occasion in question for tbe sole purpose of securing a truck load of cattle. He further said that be did not own tbe automobile driven by Williams. The testimony of tbe state showed that Williams was driving tbe car. Again appellant’s testimony was to the effect that Williams told him that he bad bought tbe whisky and given a check on bis bank for tbe amount. A banker testified that shortly after tbe arrest of appellant and Williams, a check in tbe sum of $100 given by Williams was honored at tbe bank. If appellant’s testimony had beeri accepted by tbe jury, be was entitled to an acquittal. In Weddle v. State (Tex. Or. App., opinion No. 11710) 16 S.W. (2d) 244, delivered on motion for rehearing April 10, 1929, Judge'Baltimore said: “While it is true that this court has held that in case there be a controversy over the existence of sufficient facts to support a search upon probable cause, tbe court may in an appropriate case submit such issue of fact to tbe jury for their determination, still we have always held that tbe decision of such question is primarily for tbe judge; and if there be no controversy of tbe facts offered before tbe court to support the existence of probable cause, then it might be seriously harmful to introduce such testimony before tbe jury.”

Here it was not contended that tbe search was illegal. There was no issue as to tbe existence of facts which might constitute probable cause. Tbe question of probable cause for making the search was not in tbe case. Tbe evidence in question being hearsay and of a prejudicial nature, a reversal must follow. Ehrlich v. State, 103 Tex. Cr. R. 454, 281 S. W. 548.

Tbe judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  