Dillon v. State

Full title: J. W. DILLON v. THE STATE

Court: Court of Criminal Appeals of Texas

Date published: Jan 25, 1928

108 Tex. Crim. 642 (Tex. Crim. App. 1928)

2 S.W.2d 251

Opinion

No. 11316.

Delivered January 25, 1928.

Possessing Intoxicating Liquor — Affidavit and Search Warrant — Erroneously Admitted in Evidence.

Where, on a trial for the possession of intoxicating liquor for the purpose of sale, it was error to permit the affidavit and search warrant to be introduced in evidence, which contained the statement that appellant had been instrumental in selling intoxicating liquor. No issue was raised upon which the contents of said affidavit and search warrant were relevant, and the statements therein contained were hearsay and harmful to appellant.

Appeal from the District Court of Lubbock County. Tried below before the Hon. Homer L. Pharr, Judge.

Appeal from a conviction for the possession of intoxicating liquor for the purpose of sale, penalty two years in the penitentiary.

The opinion states the case.

Vickers, Campbell Schenck of Lubbock, for appellant. On erroneous admission of affidavit and search warrant in evidence, appellant cites: Pursell v. State, 290 S.W. 1107; Dupree v. State, 119 S.W. 301; Lippman v. State, 51 N.E. 872; Velder v. U.S., 252 Fed. 418; White v. Wagar, 185 Ill. 195; Odenthal v. State, 106 Tex.Crim. Rep..

A. A. Dawson, State's Attorney, for the State.

CHRISTIAN, JUDGE. —

The offense is possession of intoxicating liquor for the purpose of sale, the punishment confinement in the penitentiary for two years.

Over the objection of appellant, the affidavit and search warrant based thereon were introduced in evidence. It is appellant's contention that the statements in said instruments to the effect that he had been instrumental in selling intoxicating liquor were hearsay. There seems to have been no issue upon which the contents of the affidavit and search warrant were relevant. The statements were hearsay and, therefore, inadmissible. The question of guilt was vigorously contested by appellant. Such being the case and the statements being obviously harmful to appellant, their improper receipt in evidence constituted reversible error. Bryant v. State, 250 S.W. 169; Gaunce v. State, 261 S.W. 577.

For the error discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.

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.