The premises searched belonged to Cowser. Appellant was an employe working on the farm and staying at Cowser's house. In our original opinion we said:
"On this trial Cowser testified that the whisky in the barn was not his and that he knew nothing of it. He also testifiedthat appellant had told him that the whisky was his."
In his motion for rehearing appellant calls attention to the fact that the court in his charge withdrew from the jury that portion of Cowser's evidence relating to what appellant told him. The witness left it in doubt whether the statement was made by appellant while in jail or after his release, under which circumstances the learned trial judge instructed the jury not to consider it. Having been stricken from the record this court can not take cognizance of it. Appellant contends that with such statement excluded from consideration the testimony — under the rules controlling where the state relies upon circumstantial evidence — is not sufficient to support the conviction. We have again carefully gone into the facts in the light of appellant's motion but have been unable to bring ourselves to his way of thinking. It would serve no good purpose to set out in detail the evidence and our analysis thereof which leads us to believe the verdict is sufficiently supported.
Appellant renews complaint because the search warrant and affidavit therefor were admitted in evidence. We see no good reason why these documents should have gone to the jury. Where objection is interposed to evidence of the result of the search until it be shown by the state that the officers were acting under a valid warrant authorizing it the purpose would be served by exhibiting to the court the warrant, and if necessary, the affidavit also. The contents should ordinarily not go to the jury; the recitals therein are necessarily hearsay. We have expressed ourselves fully upon that point in the opinion on rehearing in Broyles v. State, (No. 11191, this day decided). But as was said in that case, it is not in every *Page 105 instance that the erroneous admission of the documents mentioned will demand reversal, and such, in our judgment, is true in the present case. The affidavit was made for the purpose of securing a warrant to search Cowser's premises. The recitals in the affidavit and warrant relate to Cowser and not to appellant and we can not hold that the effect of their reception in evidence was harmful to appellant.
It being Cowser's property which was searched and not appellant's, the latter could not have complained even if the affidavit and warrant had been defective. (Craft v. State,107 Tex. Crim. 130, 295 S.W. 617), but under the decisions in Ware v. State, (No. 11334, opinion delivered May 2, 1928), and Bird v. State, (No. 11553, opinion on motion for rehearing this day delivered), the affidavit and warrant appear to be in compliance with the law.
The motion for rehearing is overruled.
Overruled.