Moore v. State , 107 Tex. Crim. 24 ( 1927 )

Appellant insists that no probable cause was shown justifying his arrest and search without warrant. Two officers testified that they were familiar with appellant's place of business and his residence and the route usually taken by him in going from one to the other. On the night in question appellant was seen to go to his place of business and to go back out of sight and get a quart bottle, which he put in a paper sack, turn out the light, and emerge from said place. That instead of going his usual route home, he went through an alley and back of some stores, down by what was known as Rat Row and across a vacant lot, taking a circuitous and unusual route. While on this vacant block he was stopped by the officers who told him they wanted what he had in that sack. He declined to give it to them and remonstrated with them, and they took the sack away from him and arrested him. We think these facts fully supported a reasonable ground of suspicion, based on circumstances sufficiently strong to warrant a cautious man in the belief that appellant was engaged in an unlawful enterprise such as is referred to in Landa v. Obert, 45 Tex. 539, and that the arrest and search of appellant without warrant was entirely justifiable.

Appellant's wife was permitted to testify that on the morning before his arrest she told him that she believed if she had a bottle of beer it would settle her stomach. We perceive no error in the rejection of her proffered testimony that appellant got home on the night of his arrest and told her that he had started home with the bottle of beer for her. Such testimony would not have sufficed to exclude evidence of the arrest and search of appellant.

Appellant was convicted for the possession for purposes of sale of spirituous, vinous and malt liquor containing in excess of one per cent of alcohol by volume. In support of this count of the indictment there was abundant proof showing appellant in possession of a nearly full crate of bottles of pear extract, a liquid shown by testimony to contain more than one per cent of alcohol, and in fact to contain from thirty-five to fifty per cent of alcohol. It was in testimony that an examination of the premises used by appellant as a place of business revealed pear extract bottles in large quantities all over the place. One witness said behind every sack, box and barrel in the place there were pear extract bottles. Another witness estimated the number of pear extract bottles found, full and empty, at 350. The state seems to have predicated its conviction in this case upon appellant's possession for purposes of sale of the large quantity of pear extract found in his possession. Appellant did not take the stand and testify, but his wife said they had the pear extract to be sold for cooking purposes. In the charge of the court he specifically told the jury that if they believed the defendant had this pear extract for flavoring or cooking purposes, they would not consider same in determining his guilt. What we have just said applies also to appellant's contention that the court erred in his charge in telling the jury that proof of the possession of more than a quart of intoxicating liquor would be prima facie evidence of guilt, but that the defendant had the right to introduce evidence showing the legality of such possession. The testimony shows without controversy that appellant had in his possession a much larger quantity of pear extract than one quart. We have considered each of the claims advanced in appellant's motion, and find ourselves unable to agree with any of them.

Believing the case rightly decided on the original presentation, the motion for rehearing will be overruled.

Overruled.