Owens v. State , 112 Tex. Crim. 1 ( 1929 )

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The State's testimony is this: The appellant was observed by a deputy sheriff driving an automobile and a collision took place. After the collision the appellant jumped out of his car and ran, at the same time dropping a bottle of whisky. The car in which he was riding was searched and two pints of whisky were found therein. The appellant's car was not on the highway but was being driven into the highway from out of a place belonging to a man named Pierce.

There was no error in refusing the peremptory instruction of which complaint is made in Bill of Exceptions No. 1.

Bill No. 2 complains of the testimony of the witness White with reference to finding whisky in the car, the ground being that there was no search warrant and no "probable cause." According to the testimony of White, when the collision occurred, the appellant jumped out of the car and dropped a bottle of whisky. Acting upon that circumstance, the search was made. We are not prepared to say that there was not "probable cause" for making the search. Cornelius on Search and Seizure, Sec. 49, notes pp. 187-188.

Bill No. 3 objects to the testimony of Osborne to the finding of the whisky in the car upon the ground that there was no search warrant. The search warrant was not introduced in evidence but from the evidence it appears that the officers had a warrant to search the premises of Bruce Pierce. The transaction upon which the prosecution was founded occurred just as the appellant was driving out of Bruce Pierce's place. We gather from the testimony that Bruce Pierce was a relative of the appellant and was charged with violation of the law against the liquor traffic. As stated above with reference to Bill No. 2, we think there was "probable cause" for the search independent of a search warrant.

Bill No. 4 presents the same question, namely, that there was no "probable cause" for the search and that therefore the search was illegal and the evidence obtained thereunder was not admissible in evidence.

For the reasons stated above that there was a "probable cause" for the search of the appellant's car, the contention is deemed untenable.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.