Magee v. State , 135 Tex. Crim. 161 ( 1938 )

We remain of opinion that the affidavit and warrant authorizing the search complained of sufficiently described the premises to be searched, and was otherwise sufficient under the authorities cited in the opinion on State's motion for rehearing.

In his supplemental motion for rehearing appellant complains that the search warrant and affidavit therefor were introduced before the jury. There are a number of bills of exception containing numerous objections to the affidavit and warrant as not being sufficient to support the search, but all of these bills recite that the affidavit and warrant were "introduced by the State of Texas before the Court." All of the objections go to the validity of the instruments, but we find no bill of exception complaining of their introduction before the jury. They should not have gone to the jury, and had there been objection thereto brought forward in proper bills our former holdings under such circumstances would have been controlling. White v. State, 119 Tex.Crim. Rep., 45 S.W.2d 225; Seay v. State, 115 S.W.2d 418, and other cases therein cited.

At the time our opinion on the State's motion for rehearing was delivered on March 9th, 1938, we had intended to withdraw our original opinion of date January 19th, 1938, but such withdrawal was overlooked. Said original opinion of date January 19th, 1938, is hereby withdrawn.

Appellant's motion for rehearing is overruled.