ON MOTION FOR REHEARING.
HAWKINS, Judge.— The case was disposed of originally on the theory that all six of the bills of exception raised questions regarding the validity of the affidavit and search warrant. In his motion for rehearing appellant directs our attention to the fact that Bill No. 6 — while *256containing some recitals supporting our original view as to its purport — ■ does, in fact, bring forward complaint thát the affidavit and warrant were admitted in evidence before the jury over appellant’s objection. A further inspection of the bill verifies this contention. We find among other objections urged to receiving the affidavit and warrant in evidence, was one based upon the ground that they were “immaterial and can serve no purpose whatever by their introduction, and would only tend to prejudice the rights of defendant, in that illegal testimony would be introduced under them.”
While the objection is general, it was sufficient to call the trial court’s attention to the fact that appellant was resisting the effort of the state to get the affidavit and warrant themselves before the jury. Obviously, these documents were not relevant to any issue in the case, so far as the jury was concerned. Where evidence is obviously hurtful and inadmissible for any purpose, a general objection on the ground that it was immaterial and prejudicial would not render the bill complaining of its admission defective. See section 208, Branch’s Ann. Tex. P. C.; McGrath v. State, 35 Texas Crim. Rep., 413, 34 S. W., 127; Guajardo v. State, 24 Texas Crim. Rep., 603, 7 S. W., 331; Fisher v. State, 108 Texas Crim. Rep., 332, 1 S. W. (2d) 301.
It has been held repeatedly that the validity and sufficiency of the affidavit and warrant to justify a search, and to receive evidence as to the result thereof, are questions of law for the trial judge; and that the documents should be presented for him to inspect, but should not go to the jury as evidence because the recitals in the documents are hearsay. Bryant v. State, 94 Texas Crim. Rep., 67, 250 S. W., 169; Gurski v. State, 93 Texas Crim. Rep., 612, 248 S. W., 353; Boortz v. State, 95 Texas Crim. Rep., 479, 255 S. W., 434; Gaunce v. State, 97 Texas Crim. Rep., 365, 261 S. W., 577; Booth v. State, 110 Texas Crim. Rep., 548, 9 S. W. (2d) 1032; Antner v. State, 114 Texas Crim. Rep., 248, 25 S. W. (2d) 860; Uptmore v. State, 116 Texas Crim. Rep., 181, 32 S. W. (2d) 474; Dillon v. State, 108 Texac Crim. Rep., 642, 2 S. W. (2d) 251.
It will be found from an examination of some of the cases cited that where no exculpatory evidence has been offered and the lowest penalty assessed, the admission of the warrant and affidavit in evidence before the jury would not be regarded as grounds for reversal; but that if guilt was vigorously combatted, or more than the minimum penalty assessed, a reversal would be called for.
The punishment assessed in the present case was three years’ confinement in the penitentiary, which was two years more than the minimum. The affidavit alleged that in the house and upon the premises described intoxicating liquor was being manufactured and sold. There was no evidence upon the trial as to the sale of liquor in the house or on the *257premises. The affidavit in question was signed by Charles Bebout and Bob Barnett. Barnet.t says in his affidavit that he had been informed, not only that a still was in operation for the manufacture of whisky, but also that such liquor was “being transported away from said house and premises for the purpose of sale.” No evidence supporting the latter recital was before the jury. Bebout did not testify upon the trial at all, yet in his affidavit it was averred that he had been informed by a minister of the gospel, not only that whisky was being manufactured on the premises of appellant, but that it was “being transported away from said ’ premises.” It is clear that the effect of admitting the affidavit in evidence resulted in getting before the jury hearsay statements which were only properly to be considered by the court in determining if probable cause existed for the issuance of the search warrant. Permitting these hearsay statements to get before the jury was unquestionably calculated to, and in all probability did, have some influence in bringing about the penalty assessed.
The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court reversed and the cause remanded.
Reversed and remanded.