Appellant renews complaint at the admission in evidence of the search warrant and the affidavit upon which it was predicated. Neither of these documents should have gone to the jury. If objection had been urged that the recitals in the affidavit and warrant were hearsay doubtless the learned trial judge would not have admitted them. Where search upon "probable cause" may legally be made in the absence of a search warrant — as of an automobile — it has been held that if it become an issue whether the facts existed which are claimed to constitute "probable cause" the evidence upon such issue should go to the jury and the issue be submitted for their determination, but if there be no issue as to the existence of such facts the question of "probable cause" is one of law to be determined by the trial judge. McPherson v. State, 300 S.W. 936. When objection is urged to evidence obtained as a result *Page 81 of a search made by virtue of a search warrant upon the ground that the warrant is insufficient, or that the recitals in the affidavit do not show "probable cause," or that it is otherwise defective, the question is one of law for the court to determine from his examination of the instruments in question and the hearsay statements in the affidavit and warrant should not go to the jury. Bryant v. State, 94 Tex.Crim. R.,257 S.W. 129; Gaunce v. State, 99 Tex.Crim. R., 261 S.W. 577; Skiles v. State, 2 S.W.2d 436. It does not follow, however, that in every case where the affidavit and warrant are permitted to go to the jury that a reversal should result. In the present case appellant admitted in his testimony that he was transporting twenty-two half gallon jars of whiskey. Such admission brought him within the prima facie case made by the statute. (Art. 671 P. C.) The jury rejected his explanation that he was transporting the liquor for medicinal purposes. Even if the affidavit and warrant had been admitted over proper objection that the recitals therein were "hearsay" we would hesitate before ordering a reversal under the circumstances presented in the present record.
The motion for rehearing is overruled.
Overruled.