
    EHRLICH v. STATE.
    (No. 9738.)
    (Court of Criminal Appeals of Texas.
    March 10, 1926.)
    1. Criminal law <&wkey;IOI(4), 636(3) — Order transferring prosecution for unlawfully transporting intoxicating liquor, from- Seventy-Seventh to Eighty-Seventh district court of Limestone county, without notice to accused, and in his absence, held not error (Acts 38th Leg. [1923] c. 27).
    Order transferring prosecution for unlawfully transporting intoxicating liquor from Seventy-Seventh to Eighty-Seventh district court of Limestone county, without notice to accused, and in his absence, under Acts 38th Leg. (1923) c. 27, held not error; transfer being no part of the trial.
    2. Criminal law j419, 428(3) — Admission .of testimony of officer arresting accused that he had received information accused would bring a load of whisky, and was on the lookout for him, was reversible error.
    Admission of testimony of officer arresting accused that he was at place of arrest to get accused’s whisky, that he was sent there, that he had received information the accused would bring in a load of whisky, and was on the lookout for him, was reversible error, especially where accused claimed that he did not know the automobile he was driving contained whis-ky.
    Commissioners’ Decision.
    Appeal from District Court, Limestone County; J. Ross Bell, Judge.
    
      ís. W. Ehrlich was convicted for unlawfully transporting intoxicating liquor, and he appeals.
    Reversed and remanded.
    Frank Bolton, of Mexia, Jim Bradley, of Groesbeck, and G. A. Walters, of Mexia, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was convicted in the Eighty-Seventh district court of Limestone county for the offense of unlawfully transporting intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the indictment in this case was returned and filed in the Seventy-Seventh district court of Limestone county, and that thereafter the judge of said court, without notice to appellant, entered an order upon the minutes transferring this case to the Eighty-Seventh district court of said county, in which the appellant was convicted as above stated. When the case was called for trial, the appellant presented a plea to the jurisdiction of the Eighty-Seventh district court, calling in question the validity of the act passed by the regular session of the Thirty-Eighth Legislature in 1923 (Acts 1923, Regular Session, p. 47), creating the said Eighty-Seventh district court, and providing therein that the judges of the Seventy-Seventh and Eighty-Seventh district courts are authorized, in criminal or civil cases, upon motion made by either party, or upon their own volition, to transfer cases from one court to another by entering an order to that effect on the respective minutes of said courts, and without any notice of such action thereon. It is the contention of the appellant in this case that said statutes authorizing the transfer of- this case without notice, and in his absence, was in violation of his constitutional rights, and questions the validity of said statute in several respects in reference thereto. We are of the opinion that the contention made by the appellant is not sound, and that there is no error shown by reason of said transfer being made without his knowledge and in his absence. This transfer was no part of the trial, but only a preliminary matter, which did not require the presence of the appellant. This was not a change of venue in any respect, but was only a transfer from one district court to another in the same county. However, in the ease of Rothschild v. State, 7 Tex. App. 519, this court held that, under a change of venue, it was not necessary for the appellant to be present when the order was entered by the court. In the case of Littleton v. State, 239 S. W. 202, 91 Tex. Cr. R. 205, this court, through Presiding Judge Morrow, under similar facts as in the instant case, held that there was no error in making the transfer from one district court to another in the same county, in the absence of the appellant, citing with approval the Rothschild Case and many other decisions of this court. See, also, Rush v. State, 255 S. W. 403, 95 Tex. Cr. R. 564; Phipps v. State, 272 S. W. 209, 100 Tex. Cr. R. 607.

The appellant also complains of the action of the court in permitting the state’s witness Burroughs, after having testified to arresting the appellant, and finding in the back end of his car the whisky in question, over his objection, to testify that his purpose in being on the road at the place of the arrest about 2:30 in the morning was to get the appellant’s whisky; that Mr. Willis had sent him and the other parties out there; and that he had received information that the defendant would bring in a load of whisky, and was on the lookout for him at that time. The appellant’s objection to this testimony was that it was hearsay, and strongly indicated his guilt by the introduction of such hearsay evidence. After a careful examination of the record, and especially in view of the appellant’s defense to the effect that he had carried one Tracy to Hallas in his automobile, and was paid by him to do so, and while there he (Tracy) had borrowed his car for about 30 minutes, and, when it was returned, Tracy stated he had decided to go back on the train and appellant could drive said ear back by himself, and that he had no knowledge of the whisky being in the car, and would not have transported same had he known it was in the car, we have reached the conclusion that this hearsay testimony bearing directly on the defense of the appellant was highly prejudicial, and should not have been admitted. What we have said in this respect is applicable to the other officers acting with said Burroughs, in so far as same embraces their reasons for being out upon the road watching for the appellant at the time of the arrest. Eor collation of authorities, see Branch’s Ann. P. C. § 1930.

The appellant also complains of the action of the court in overruling his first application for continuance, but the disposition we have made of this case makes it unnecessary for us to discuss this bill, as this question will not likely arise again upon another trial.

For the errors above mentioned, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

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. 
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