Pendergrass v. State , 121 Tex. Crim. 213 ( 1932 )

Appellant insists that there was a disputed issue of fact as to probable cause for the search of his car, which issue appellant asserts in his motion for rehearing, should have been submitted to the jury. The record shows that officers were trailing the car in which were appellant and another and in which car when finally searched there was found a quantity of whisky. Mr. Vinson, the first officer who gave testimony, said: "We were following this car because we had information that there was a load, — that they were hauling liquor." Movements and speed of the car and its pursuers were all detailed. The car was said to be going thirty-five or forty miles per hour in the city of Port Arthur. When the car was finally stopped, and before the officers got out of their car, one of them flashed a flash light on said car and saw the jugs of whisky sitting therein. The only witness relied on by appellant as raising any issue as to probable cause was the driver of the police car, who testified that he was paying attention to his car and trying to crowd the car in which appellant was over to the curb without having a collision. This witness said he could not say what the other officers did or saw because his attention was occupied with the driving of the car in which the other officers were when they overtook appellant. The other officers also testified that as they drew near appellant's car they put the siren on in order that the occupants of the car might be apprised of the fact that those pursuing were the police. The defense witness, the driver above referred to, at first said the siren was not used, and gave as his reason the fact that his car was not equipped with a siren. Later and when it was shown that the car he was driving was a police car and that it was equipped with a siren, he said he did not remember whether the siren was put on or not. If the issue of probable cause can ever be a jury question, of which the writer is doubtful, we are still unable to see any necessity for submitting to the jury the issue of probable cause in this case.

We think we made proper disposition of appellant's complaint that he was not allowed to ask the jurors whether they were prohibitionists. One complaining of procedure like this must not only show that he made complaint, but must go further and make some showing that the ruling of the court was wrong and that by the ruling he was hurt. We do not think those cases in which the right to ask prospective jurors as to their membership in the Ku Klux Klan was held transgressed, have application. Appellant seems not to have made any effort to show that any person taken on the jury was objectionable to him, or that permission to ask if the jurors were prohibitionists would have led to knowledge upon which he would have challenged any of them. The substantial rights of appellant in this regard were fully protected by the ruling of the court, as stated in our original opinion.

We think we correctly passed on appellant's complaint of the argument. The record shows that others beside appellant were present at the time the whisky alleged to have been transported was found in the car. It further appears from the bill of exception making complaint of said argument that in the discussion by appellant's attorney before the jury he took the position that there was no evidence to sufficiently show that the liquor transported was in fact whisky, and that it was in reply to this argument of appellant's attorney that the attorney for the state, in closing the case, made the statement complained of, viz: "Defendant has brought before you no testimony that the liquor transported was not whisky." This seems no transgression of the rules and no forbidden reference to the failure of appellant to testify. Two men were in the car, O'Burke, who was driving, and appellant, between whose feet were the containers of whisky, a gallon and a half in jugs and two beer bottles full. When the officers stopped the car one of the occupants said, "Well, you got us," or "All right, you got us." No disclaimer of interest in the liquor was made by appellant then and none at this trial. A very different state of facts appears in the case of De Grace v. State, 115 Tex.Crim. Rep.,27 S.W.2d 186, cited by appellant. In the case mentioned there was testimony affirmatively showing that the accused knew nothing of the presence of the whisky in the car, and a special charge presenting such defensive issue was refused.

We see no ground for complaint of the fact that while attempting to evade their pursuers appellant and his companion drove their car thirty-five or forty miles per hour in the city of Port Arthur, the ground of objection being that such act constituted a separate and distinct offense from that of the transportation of intoxicating liquor.

The motion for rehearing will be overruled.

Overruled.