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 1933-11

Porter v. State , 125 Tex. Crim. 163 ( 1933 )


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  • We have again carefully examined bill of exception No. 1 and are unable to agree with appellant's renewed contention that the court abused its discretion in excusing the officers of the court from operation of the rule as to witnesses.

    Appellant insists that the principle announced in Carter v. State, 22 S.W.2d 659; Gartman v. State, 57 S.W.2d 137; Martin v. State, 54 S.W.2d 812, and in other cases of similar import is fundamentally wrong. We fail to perceive necessity *Page 169 for reviewing the cases or writing further supporting the principle for the reason that the testimony of the officer who arrested appellant and searched his car was unquestionably admissible independent of anything appellant said when questioned by the officer. Of the hundreds of cases reviewed by this court where the issue was probable cause to search an automobile in the absence of a search warrant, scarcely any of them present a stronger case of probable cause than is revealed from the present record. In the discussion of bill of exception No. 2 in our original opinion we set out in condensed form the advance information upon which the officer acted. It would extend this opinion unnecessarily to elaborate or state it more in detail. If appellant had made no response to the officer's question based upon the advance information in his possession, the officer would have been authorized to proceed with a search of appellant's car and to have broken into it had it been necessary to have done so in making the search effective. See Carroll v. U.S., 267 U.S. 132, 69 L.Ed., 543, 39 A. L. R., 790; Whitworth v. State, 105 Tex.Crim. Rep.,290 S.W. 764; Straley v. State, 106 Tex.Crim. Rep.,290 S.W. 766; Plant v. State, 106 Tex.Crim. Rep., 292 S.W. 550; Weaver v. State, 59 S.W.2d 396; Battle v. State,105 Tex. Crim. 568, 290 S.W. 762; Rochelle v. State,107 Tex. Crim. 79, 294 S.W. 860; Silver v. State,8 S.W.2d 144; Cleghorn v. State, 12 S.W.2d 1033; McPherson v. State, 111 Tex.Crim. Rep., 15 S.W.2d 633; Bullock v. State, 112 Tex.Crim. Rep., 16 S.W.2d 1077; Husty v. U.S.,282 U.S. 694, 75 L.Ed., 629.

    The motion for rehearing is overruled.

    Overruled.