
    GUNTER v. STATE.
    (No. 11384.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    1. Searches and seizures <&wkey;3(I) — “Probable cause” authorizing search without warrant is reasonable ground of suspicion supported by circumstances warranting cautious man in belief of guilt.
    “Probable cause” justifying officer to search and seizure without warrant is reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant cautious man in belief that person is guilty of offense with which he is charged.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Probable Cause.]
    2. Criminal law <&wkey;394 — Testimony of transporting liquor seized by searching, automobile without warrant held inadmissible, in view of lack of evidence showing probable'cause.
    In prosecution for transporting intoxicating liquor, admitting evidence obtained by search of automobile without warrant held error, in view of lack of evidence showing officers acted on knowledge amounting to probable cause.
    3. Criminal law <&wkey;419, 420(12) — In prosecution for transporting intoxicating liquor, admitting affidavit and warrant for search of building near automobile containing liquor held error as hearsay.
    In prosecution for transporting intoxicating , liquor, where officers searched automobile without warrant and found liquor, admitting in evidence over objection affidavit and search warrant on which officers searched building near by held error; statements therein being hearsay.
    4. Criminal law <S&wkey;l 169(1) — Improper receipt of hearsay evidence which is obviously harmful is reversible error.
    In criminal prosecution, improper receipt of hearsay evidence which is obviously harmful is reversible error.
    Commissioner’s Decision.
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    W. H. Gunter was convicted of transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Jones & Brown, of Breckenridge, for appellant.
    A, A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for one year.

Officers had a search warrant for the search of the Walnut Rooms in the city of Breckenridge. Appellant, in company with his wife and one Cooper, drove up in a Chevrolet áutomobile and parked in the street at the curb next to said Walnut Rooms. Appellant owned the car. On' parking the car) appellant and his companions went to the front of Walnut Rooms; the same being the main entrance to the building. Officers had' completed their search of the house and were searching on the outside when appellant drove up. The officers did not know appellant nor his companions, and did not know to whom the Chevrolet car belonged. One of the officers followed appellant and his companions to the front entrance of the building for the purpose of ascertaining their identity. Another officer went to the car, searched it, and found therein a half gallon jar of whisky about two-thirds full and a quart jar about half full of whisky. Said officers were not armed with a, warrant authorizing the search of the car, and did not know before making the search that it contained intoxicating liquor. The officer making the search testified that he had no more reason “to suspicion this car of containing •intoxicating liquor than he would any other car that may have driven up to the Walnut Rooms and parked.” He further stated that he would have searched any car he had seen .driving up to said building.

Appellant objected to the receipt of the evidence touching the results of the search, on the ground that the search was made without a search warrant, and that the officers had no information or knowledge of facts constituting probable cause. The court overruled the objection and qualified appellant’s bill of exception No. I as follows:

“The witness Deason testified that he had information that whisky was to be delivered to the Walnut Rooms, and that they were watching the premises for that reason, and would have searched any ear stopping there during that time.”

In Battle v. State, 105 Tex. Cr. R. 568, 290 S.W. 762, this court held that:

“The search of an automobile upon the public highway may be made without warrant where the seizing officer has knowledge or information of facts constituting ‘probable cause.’ ”

Probable cause has been defined as:

“A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” Landa v. Obert, 45 Tex. 539.

We find nothing in the record which would justify the conclusion that in searching appellant’s car the officers acted upon knowledge amounting to “probable cause.” It follows that the learned trial judge fell into error in admitting their testimony touching the results of the search.

The propriety of receiving in evidence, over appellant’s objection, the affidavit and search warrant upon which the officers acted in searching Walnut Rooms, is not discerned. There seems to have been no issue upon which the contents of such instruments were relevant. The statements contained therein were hearsay. Their admission was error. Where the improper receipt of such evidence is obviously harmful, the error is reversible. Bryant v. State, 94 Tex. Cr. R. 67, 250 S. W. 169; Gaunce v. State, 97 Tex. Cr. R. 365, 261 S. W. 577.

The 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. 
      «gsoFor other cases see same1 topic and KEY-K UMBEIt in all Key-Numbered Digests and Indexes
     