Armstrong v. State

PER CURIAM.

The. above styled and numbered matter having come on for further hearing on petition for rehearing, and after oral argument thereon, the Criminal Court of Appeals is of the opinion, that it was prejudicial to-the substantial rights of the defendant and denied him a fair trial to admit the evidence of the liquor obtained by reason of the void search warrants because the evidence of defendant’s guilt of possession of the liquor seized in the search of the tourist cabin was not so clear and convincing that this court can conclude the defendant would have been convicted if the improper evidence had not been received. The court is therefore of the opinion that the opinion heretofore rendered should be vacated and set aside, with directions to vacate the judgment and sentence herein involved and to re-try the defendant on the evidence involving the liquor obtained in the search of the cabin alone.

The judgment and sentence of the county court of Custer county is therefore reversed, and the cause is remanded for a new trial.