McGowan v. State , 158 Tex. Crim. 319 ( 1953 )

255 S.W.2d 512 (1953)

McGOWAN
v.
STATE.

No. 26215.

Court of Criminal Appeals of Texas.

March 4, 1953.

Joe H. Jones, Dallas, for appellant.

George P. Blackburn, State's Atty., of Austin for the State.

MORRISON, Judge.

The offense is the unlawful transportation of wine in a dry area; the punishment, a fine of $500.

In view of our disposition of the case, a recitation of the facts is not deemed necessary.

The trial court permitted the State to introduce before the jury the search warrant and the affidavit therefor, together with evidence that the accused was known to be a bootlegger. None of such evidence was admissible before the jury. The jury should have been retired when the evidence was heard by the court on the issues of the legality of the search warrant and the existence of probable cause authorizing the search of the automobile.

At the conclusion of the testimony, the appellant moved the court to withdraw the same from the jury. The motion was overruled, and the appellant excepted.

In refusing to grant the motion, the court fell into error, which calls for a reversal of this cause. Byars v. State, 154 Tex. Crim. 515, 229 S.W.2d 169, and Walker v. State, 146 Tex. Crim. 321, 174 S.W.2d 974.

Judgment reversed and cause remanded.