Blackburn v. State , 125 Tex. Crim. 180 ( 1933 )

Appellant filed a motion asking that we make an order recalling the mandate which was issued under the judgment of date October 18, 1933, in which the motion for new trial was overruled, and also requesting consideration of a motion for rehearing based on said judgment, it being appellant's contention that the original opinion affirming the judgment did not discuss the merits of the case, and that his present motion should be considered a first motion for rehearing.

Appellant predicates his request for a further review of his case upon the claim that we were not authorized in saying in our former opinion that "before making the search (of appellant's car) the sheriff was informed that a man who had parked his car upon a public highway was asleep; that he was intoxicated and that about him and his car there was the odor of intoxicating liquor." Perhaps the evidence did not justify us in the conclusion complained of. Oakley had observed all of the things mentioned but only testified that after doing so he "communicated with the sheriff," without saying what he told the officer. The sheriff testified that by telephone he received information that there was a car out on the public road out about seventeen miles from Burnet. Even though the officer had no further information than last indicated, his acts in the premises were fully justified and his evidence of discovering the intoxicating liquor in the car was properly received. There is no question but that appellant's car was parked in the traveled part of the road and had been there for some time. How long it had been there when Oakley discovered it is not shown, but he stayed about the car for a quarter of an hour, then communicated with the sheriff, and it was about an hour later when the sheriff arrived at the scene, at which time the car was still standing in the road with appellant under the steering wheel apparently asleep. Article 784, P. C. (1925), denounces as an offense the wilful obstruction of a public road. Article 65, C. C. P. (1925), in general terms, provides that the commission of offenses may be prevented by officers of the law. However, the sheriff in the present instance had direct and specific authority to investigate the presence of appellant's car parked as it was in the public road. Acts 41st Legislature, Second Called Session, chap. 42, sec. 10, reads as follows:

"No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of any incorporated town or city, when it is possible to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; provided, in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of 200 feet in each direction upon such highway.

"Whenever any peace officer or license and weight inspector of the Department shall find a vehicle standing upon a highway in violation of the provisions of this section, he is hereby authorized to move such vehicle or require the driver or person in charge of such vehicle to move such vehicle to a position permitted under this section."

Under the terms of the foregoing Act the sheriff had authority to ascertain why appellant's car was parked in the road, to open the door of the car if necessary for that purpose, and to cause appellant to remove the car from the road, or to do it himself. Upon opening the door of the car the sheriff discovered that appellant was intoxicated, and further investigation resulted in finding the sixty-eight gallons of whisky. We discern no act of the sheriff which was a violation of any constitutional provision, either of the Constitution of the United States or of this state, or in violation of any law of our state. The following cases have some bearing on the point under consideration: Pena v. State, 111 Tex. Crim. 218,12 S.W.2d 1015; Hawley v. State, 107 Tex. Crim. 243,296 S.W. 556; Nuben v. State, 21 S.W.2d 1061; Bell v. State, 47 S.W.2d 839.

It is apparent from what has been said that it would avail appellant nothing to permit his second motion for rehearing to be filed. His request for such permission is therefore denied and his motion to recall the mandate is overruled.

Overruled.