
    McPHERSON v. STATE.
    (No. 11034.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    1. Criminal law &wkey;>394 — Where search of automobile without warrant was made without sufficient information to constitute probable> cause, evidence disclosed was inadmissible.
    Where search of automobile was made by officers without a search warrant and without sufficient information before search to constitute probable cause, evidence of their finding in the automobile vessels containing whisky was inadmissible.
    2. Criminal law c&wkey;>l 111 (3) — Reviewing court is bound by recitals in bill of exceptions.
    The Court of Criminal Appeals is bound by recitals in the bill of exceptions.
    3. Criminal law <&wkey;4l9, 420(10) — Testimony of sheriff that he had heard defendant had been leaving whisky at a house was hearsay and properly excluded.
    Where, in prosecution for transporting intoxicating liquor, sheriff testified that he had gone to search a house, his testimony that he had heard defendant had been leaving whisky there was hearsay and 'properly excluded.
    4. Criminal law <&wkey;736(l) — Whether officers had information constituting probable cause for search is primarily for court’s investigation in jury’s absence.
    Whether information officers had received before searching automobile constituted probable cause was question primarily for court to be investigated in absence of jury.
    5. Criminal law @=>736(1) — If facts exist which are claimed to constitute probable cause for search of automobile, issue thereof should be< submitted to jury.
    In prosecution for transporting intoxicating liquor, should there be issue whether facts existed which constituted probable cause for search of defendant’s automobile without warrant, such issue should be submitted to jury.
    6. Criminal law @=>1115(1) — Facts on which trial court ^determined probable cause exists for search of automobile should be brought before reviewing court in proper manner.
    In prosecution for transporting intoxicating liquor, when trial court has determined that probable cause exists for search of defendant’s automobile without a warrant, facts on which he predicated his ruling should be brought before reviewing court in proper manner if review of court’s action is sought.
    
      Appeal from District Court, Gregg County; P. O. Beard, Judge.
    Bob McPherson was convicted of transporting intoxicating liquor, and be appeals.
    Reversed and remanded.
    W. C. Shoults, of Longview, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor, punishment being one year in the penitentiary.

Officers without a search warrant searched appellant’s automobile and found therein a jug and fruit jar containing whisky. It becomes necessary to reverse the judgment upon the recitals in bill of exception No. 1. It appears therefrom that appellant objected to the sheriff testifying as to the result of the search upon the ground that it was made in violation of the Constitution and laws of the state. In approving the bill the learned trial judge states that the objection urged was that the officers had no warrant authorizing the search, but in no way undertakes to qualify the recitals in the bill, which in substance are that the testimony of the sheriff showed not only the absence of a search warrant but also showed that the search was made without “probable cause,” and without having sufficient information before the search to constitute “probable cause.” This court is bound by the recitals in the bill, and under those just related has no option but to order a reversal. Odenthal v. State, 106 Tex. Cr. R. 1, 290 S. W. 743; Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762; Whitworth v. State, 105 Tex. Cr. R. 641, 290 S. W. 764; Straley v. State, 106 Tex. Cr. R. 130, 290 S. W. 766; Fowler v. State, 106 Tex. Cr. R. 66, 290 S. W. 1104; Plant v. State, 106 Tex. Cr. R. 330, 292 S. W. 550; Rochelle v. State (Tex. Cr. App.) 294 S. W. 869.

There is an intimation in 'the statement of facts that the officers may have been in possession of information which would have justified the search. The sheriff testified he had gone to search a house where “he had heard he (appellant) had been leaving whisky.” The court instructed the jury not to consider what the officer had heard. This ruling was correct as withholding from the jury the hearsay evidence which might have injuriously affected appellant. Whether the information the officers had received constituted “probable cause” was a question primarily for the court and could have been investigated in the absence of the jury. Bingham v. State, 97 Tex. Cr. R. 596, 262 S. W. 747; Warren v. State, 98 Tex. Cr. R. 639, 267 S. W. 723; Burton v. State, 102 Tex. Cr. R. 110, 277 S. W. 390. If any investigation was had in the absence of the jury, it is not made to so appear in the record now before us.

If it should become an issue whether the facts existed which are claimed to constitute “probable eause,” it would be proper to submit the issue to the jury. When the court has determined that “probable cause” existed for the search of an automobile, the facts upon which he predicated his ruling should be brought before this court in proper manner if a review of such action is sought. However, no such question arises in the present case, the bill of exception having recited that “probable cause” did not exist.

The judgment is reversed and the cause remanded. 
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