ON MOTION FOR REHEARING.
GRAVES, Presiding Judge.This matter has heretofore been affirmed by us, and in the motion for rehearing appellant stresses but one point, it being the only point brought forward in the bill of exception, and that is that the assistant district attorney, in his presentation of this matter before the jury made the following argument:
“That Officer Bass received a call that Jeff D. McKnight was headed toward Humble with marihuana cigarettes in his car.”
This statement was made in the opening address of the assistant district attorney, and upon appellant’s timely objection thereto as being an unsworn statement of such attorney and not a comment on evidence before the jury, the trial court sustained the objection thereto and instructed the jury not to consider the argument. Immediately thereafter the appellant’s attorney requested the court to declare a mistrial which request was denied by the trial judge. The bill further shows that thereafter the same assistant district attorney, after the court had sustained the objection to the argument relative to the information received by the arresting officer, again made the statement to the jury in his argument as follows:
“These officers received information that the Defendant was on his way to Humble with some marihuana.”
This argument was again, objected to by the appellant’s attornéy as not being argument on evidence admitted before the jury. The court again sustained the objection upon the re*405quest of counsel to instruct the jury not to consider the same. Appellant’s counsel also requested the court to declare a mistrial which the court refused to do.
At the beginning of this trial the appellant was shown to have been arrested by a deputy sheriff who had no warrant for his arrest at the time thereof. Whereupon the appellant’s attorney objected to all the evidence that might have been obtained from the search of the appellant because of the fact that the arresting officer had no warrant therefor and did not act upon probable cause; at which time the jury was retired and the question of probable cause was gone into in their absence. It was shown before the court practically all that was set forth in the argument objected to, but this did not take place in the presence of the jury, and the jury was not allowed to hear the statement relative to the information that the arresting officer might have received from some other person, same being hearsay at the time.
We are of the opinion that the continued reference to this hearsay testimony was injurious to the appellant’s defense as a new fact injected into the case, and that the same was hearsay and not admissible on the trial hereof, nor should same have been heard before the jury.
Under the circumstances, we think the motion for rehearing should be granted, the order of affirmance set aside, the judgment reversed and the cause remanded, and it is so ordered.