Hardiway v. State , 108 Tex. Crim. 659 ( 1928 )

Conviction is for transporting intoxicating liquor, punishment being one year in the penitentiary.

Chenault, a policeman in the city of Paris, in Lamar County, was directing traffic on one of the streets and observed the car driven by appellant which had only one light burning. The officer called his attention to the light and appellant indicating no intention to stop, the officer tried to detain the car on account of the defective lights. Appellant drove by the officer, who, while attempting to stop the car, observed some fruit jars in the back of it. Appellant drove away. The officer got in another car and overtook appellant, who again refused to stop. When about to be overtaken for the second time appellant and his wife abandoned the car and eluded the officers. The car was found to contain eleven fruit jars full of whiskey and one partially full. There is no merit in appellant's objection to Chenault's evidence because he had no search warrant. None was needed under the facts of this case. Appellant was violating the motor vehicle "head-light" law in driving a car with only one light. (Art. 798, P. C.) The officer had a right to arrest for such an offense without a warrant. (Art. 803, P. C.) While undertaking to perform his duty as an officer he observed the fruit jars in the back of the car. This, together with appellant's subsequent conduct, furnished probable cause for the search of the car without a warrant. Odenthal v. State, 106 Tex.Crim. Rep.,290 S.W. 743; Washington v. State, 296 S.W. 512; Rochelle v. State,294 S.W. 860; Plant v. State, 292 S.W. 550; Whitworth v. State,105 Tex. Crim. 641, 290 S.W. 764; Battle v. State, 105 Tex. Crim. 568, 290 S.W. 762.

Bills 2 and 3 question the ruling of the court in permitting proof by the state sustaining its witness Chenault. Appellant had introduced evidence that the witness had made statements contradictory of the testimony given by him on the trial. Under such circumstances it was permissible for the state to prove his general reputation for truth and veracity to be good (Dixen v. State, 15 Tex.Crim. App. 271), and also to prove that shortly after the transaction the witness made statements consistent with the testimony given by him on the trial. Goode v. State, 32 Tex.Crim. Rep., 24 S.W. 102. (For collation of authorities on each point see Branch's Ann. Tex. P. C., Secs. 181 and 184.)

Appellant sought a new trial on the ground of newly discovered evidence and attached to his motion the affidavit of two witnesses who resided in Oklahoma to the effect that appellant was in Oklahoma at the time he was claimed by the state to have been transporting the liquor in question. The evidence of these witnesses is in no sense newly discovered. The indictment charged the offense to have been committed on or about October 1, 1925. The state confined it to October 1. The witnesses whose evidence is claimed to be newly discovered assert that they were with appellant in Hugo, Oklahoma, at the very time the offense is claimed to have been committed. If appellant was with these witnesses he must have known it all the time. Appellant fails to bring himself within the well known rules which must be complied with before a new trial will be awarded on the ground of newly discovered evidence. (Art. 753, C. C. P. See authorities collated under note 25, Vernon's C. C. P., Vol. 3, p. 13.)

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.