¶1 on motion for rehearing.
¶2 One ground of objection to the introduction in evidence of the search warrant and affidavit therefor was that the same was hearsay. We overlooked this particular objection. They were hearsay and ought not to have gone before the jury. It was sufficient that they be exhibited to the court. It was his province to determine their validity. Broyles v. State, 110 Tex. Cr. R. 77, 7 S. W. (2d) 555; McFarland v. State, 110 Tex. Cr. R. 101, 7 S. W. (2d) 955. However, it has been held that where no exculpatory evidence is offered, and the lowest penalty assessed the admission in evidence of the warrant and affidavit therefor may not call for reversal, but that the recitals in both are hearsay and if guilt is vigorously combated, or more than the minimum punishment assessed, a reversal might be called for. Gurski v. State, 93 Tex. Cr. R. 612, 248 S. W. 353; Boortz v. State, 95 Tex. Cr. R. 479, 255 S. W. 434; Gaunce v. State, 97 Tex. Cr. R. 365, 261 S. W. 577; Broyles v. State, 110 Tex. Cr. R. 77, 7 S. W. (2d) 555; Booth v. State, 110 Tex. Cr. R. 548, 9 S. W. (2d) 1032; Dillon v. State, *258108 Tex. Cr. R. 642, 2 S. W. (2d) 251. In the present case there was practically no defensive evidence offered. The lowest penalty was inflicted. Under the record, we would not be justified in reversing for the error complained of.
¶3 The motion is overruled.
¶4 Overruled.
¶5 • Hawkins, J., absent.