Cothren v. State , 136 Tex. Crim. 463 ( 1939 )

Conviction is for possessing intoxicating liquor for the purpose of sale in dry territory, punishment assessed being a fine of one hundred and twenty-five dollars.

The sheriff of San Saba County testified that on the night of April 12, 1938, he received a telephone call from Llano advising him that a car was coming towards San Saba with a "good load," giving him the number and description of the car. The sheriff went out on the road about ten miles and presently appellant and his wife came along in a car corresponding in number and description to the one described in the telephone call. The sheriff followed and stopped them. He knew appellant and asked what he had in the car and appellant said, "He guessed he had too much beer." The sheriff then looked the car over and found it contained ninety-six bottles of beer, there being one full case of twenty-four bottles and six half cases containing twelve bottles each. The sheriff had no warrant of arrest, no search warrant, and no permission from appellant to search the car. Appellant did not testify and presented no evidence.

Appellant objected to the sheriff's testimony regarding the contents of the car on the ground that the arrest was illegal and the search unauthorized in the absence of a search warrant.

Appellant cites Moss v. State, 117 S.W.2d 428 and Weeks v. State, 106 S.W.2d 275, to support his position that the arrest was illegal. Weeks' case was decided in May, 1937, and Moss' case in 1938 on a transaction which occurred in March, 1937. At the time the offense in each of the cases mentioned occurred the Legislature had not authorized arrests without warrant for the offense here charged, hence the holding that the arrests in the foregoing cases were illegal. By Act of the 45th Legislature, page 1089, Sec. 30, Art. 1, Ch. 467, Acts of 2d C. S., 44th Legislature was so amended as to authorize an arrest for the offense here charged without a warrant. The amended statute became operative on September 1, 1937, and was effective when the arrest here was made on April 12, 1938. The amended law is carried forward in Vernon's Tex. P. C. Vol. 1, as Art. 666-30. For opinion making application of the present statute see Eproson v. State, 120 S.W.2d 1073. The arrest of appellant being legal the search of his car was authorized. Linthicum v. State, 116 S.W.2d 714 and many authorities therein cited. The amended statute just referred to also authorizes the search and seizure "without warrant" of all contraband liquor. Under the two provisions pointed out it occurs to us that officers now have the same right to search a vehicle upon probable cause as under the former state-wide prohibition law, that is, where the searching officer prior to the search has knowledge or information of facts constituting probable cause. The subject will be found treated in 38 Tex. Jur., Secs. 60-68, p. 85, etc., with many cases annotated in the footnotes which illustrate our holding upon the phases arising under varying facts. It appears from the facts here present that the sheriff had information amounting to probable cause even before he stopped appellant's car. As particularly applicable in view of appellant's answer to the officer's inquiry to the effect that he (appellant) guessed he had too much beer in his car we cite the following cases. Pena v. State, 111 Tex.Crim. R.,12 S.W.2d 1015; Carter v. State, 113 Tex.Crim. R.,22 S.W.2d 659; Williams v. State, 118 Tex.Crim. R., 40 S.W.2d 142; Johnson v. State, 118 Tex.Crim. R.,42 S.W.2d 421; Blackburn v. State, 125 Tex.Crim. R., 66 S.W.2d 697; Porter v. State, 125 Tex.Crim. R., 67 S.W.2d 292.

Appellant complains that the trial court made a mistake amounting to a fundamental error in authorizing punishment by fine of not less than one hundred nor more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment, under the provision of Art. 666-41, Vernon's Ann. Tex. P. C., Vol. 1, same being Sec. 41 of Art. 1, Acts 1937, 45th Legislature, page 1053. He cites Moran v. State, 122 S.W.2d 318, as supporting his complaint. We fail to see the application of the Moran case to the one now under consideration. There we pointed out a confusion of penalties where accused was being prosecuted for having possession of whisky on premises upon which a permit had been granted to sell beer only. No such confusion exists in the penalty prescribed for the offense in the instant case.

Finding no error in the record presenting cause for reversal, the judgment is affirmed.

ON MOTION FOR REHEARING