Moore v. State , 107 Tex. Crim. 24 ( 1927 )

The offense is the unlawful possession for the purpose of sale of spirituous, vinous and malt liquors containing in excess of one per cent of alcohol by volume, punishment fixed at confinement in the penitentiary for one year.

According to the state's testimony, the sheriff saw the appellant in his place of business (a store), put a quart bottle in a paper sack and walk out on the street with it in his possession. The officer accosted and arrested the appellant and took from his possession a quart bottle of beer. The officer afterward obtained a search warrant and searched the house from which the beer was taken. The search resulted in the discovery of other bottles with beer in them.

Objection to the testimony was made and overruled, the ground of objection being that the information obtained by the officers and to which they testified, was obtained through an illegal search, and its receipt in evidence was inhibited by Art. 727a, C. C. P., 1925. At the time of the appellant's arrest, he was committing a felony in the presence of the officers. One who commits a felony in the presence or view of an officer may be arrested without a warrant. Arts. 212-213, C. C. P., 1925. Hodges v. State, 6 Tex.Crim. App. 620, and other cases collated in Branch's Ann. Tex. P. C., Sec. 1979; Crippen v. State, 80 Tex.Crim. Rep.; Vernon's Tex. C. C. P., 1925, Vol. 1, pp. 174-175. The Constitution, Art. 1, Sec. 9, on the subject of searches and seizures, protects the citizen from an arrest on mere suspicion. Lacy v. State, 7 Tex.Crim. App. 411.

The point is made that the officers did not, at the time they arrested the appellant, know the contents of the bottle to be intoxicating liquor. To justify the arrest, "probable cause," within the meaning of the law, was essential. Landa v. Obert, 45 Tex. Rep. 539. That is, a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the appellant was in the unlawful possession of and was transporting liquor. See Battle v. State, 290 S.W. 763; Carroll v. United States,267 U.S. 132; Odenthal v. State, 290 S.W. 745. The facts, as we find them in the record, impress us as sufficient to show that before the appellant was arrested or searched the officers possessed knowledge amounting to "probable cause," as above defined. We will add, however, that the conviction seems not to have been on the act to which the complaint mentioned above is addressed. The subsequent search of the building under a search warrant developed evidence showing the possession of liquor sufficient to support the verdict. The act showing transportation, however, was relevant on the issue of possession, particularly on the question of intent, and the arrest being thus justified, the search was likewise legal.

From the case of Agnello v. United States, 269 U.S. 20, 46 Sup.Ct. Rep. 4; 70 Law Ed. 145, we take the following:

"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits, or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158; 69 Law Ed. 543, 553; 39 A. L. R. 790, 45 Sup.Ct. Rep. 280; Weeks v. United States, 232 U.S. 383, 392; 58 Law Ed. 652, 655, L. R. A. 19158, 834, 34 Sup.Ct. Rep. 341. Ann. Cas. 19150, 1177."

See also Samino v. State, 83 Tex.Crim. Rep.; Harper v. State, 84 Tex.Crim. Rep.; Jones v. State, 85 Tex. Crim. 538.

In Bill No. 7 the point is made that proof of the result of the search of the appellant's store under a search warrant was illegal for the reason that at that time he had been arrested and there was found in his possession a quart of liquor which the officers had seen him take out of the store. The indictment contained a count charging the unlawful transportation as well as the unlawful possession. It was therefore permissible for the state to introduce testimony under each count. In fact, the transactions were so connected as to make one a part of the other.

A motion was made to require the state to elect between the counts. The adduced evidence being admissible to support each of the counts — that for possession and that for transporting — and the jury having designated in their verdict the count upon which the conviction rests, viz., possession, and the lowest penalty having been assessed, we fail to find merit in the complaint. See Branch's Ann. Tex. P. C., Sec. 444, and cases collated.

Appellant's wife testified that she told her husband to bring her some beer and that he returned without it. The rejection of her further proffered testimony to the effect that the appellant stated that he had started with the beer but that it had been taken away from him was, we think, proper upon the ground that it was hearsay. At least, its rejection, under the circumstances, was not of such importance as to warrant a reversal of the judgment.

The court did not err in refusing to instruct a verdict of acquittal. The indictment contained four counts. The transaction upon which the conviction rests was pertinent to each of the counts. They charged the transportation and possession of liquor. Two of them described the liquor as intoxicating, and the other two described it as spirituous, vinous and malt liquor containing in excess of one per cent of alcohol by volume. In its charge to the jury, the court embraced each of the counts.

Paragraphs 15, 16, 17 and 21 of the court's charge are criticised in bills of exceptions. The evidence is to the effect that in the appellant's store building, which was searched immediately after his arrest, there were two quart beer bottles which were cold and empty save a small quantity of beer in each of them. There were a number of other empty beer bottles in the building. In it there were some 250 or more empty "pear extract bottles." There was also a case containing a dozen or more bottles full of pear extract. One of the witnesses testified that he was familiar with the beverage which was being sold and which was called "pear extract;" that he had seen a quantity of it; that it came in bottles and in cases; that it was a spirituous liquor containing in excess of one per cent of alcohol by volume and was capable of producing intoxication. The beer which was found in the appellant's possession was analyzed and found to contain 4.65 per cent of alcohol by volume.

The appellant did not testify, but his wife did. She said that in receiving the pear extract they had frequently broken bottles; that she had been pregnant and sick and had used beer for its medicinal effect; that on the night of the appellant's arrest he had been requested by her to bring a bottle of beer but he returned without doing so. She said that she thought the beer bottles contained "near beer;" that she had been told by a doctor, who was now in Louisiana and who had been gone for some twenty years, that beer might be good for her. The labels on the pear extract bottles stated that it contained fifty per cent alcohol.

In paragraph 15 of its charge the court charged the jury upon the substance of the statute making the possession of a quart of intoxicating liquor prima facie evidence of its illegal possession.

In paragraph 16 there was embraced a charge explaining the meaning of the term "prima facie evidence" in accord with Art. 671, P. C., 1925, and interpreted in Stoneham v. State, 99 Tex. Crim Rep. 54, and other cases.

Paragraph 17 defines intoxicating liquor in what is deemed an unexceptional manner. However, the conviction did not rest upon either of the counts relating to intoxicating liquor but upon that charging the possession for the purpose of sale of spirituous, vinous or malt liquor containing in excess of one per cent of alcohol by volume.

Paragraph 21 also deals with the subject of intoxicating liquor, which, as stated above, was eliminated by the verdict. However, there is embraced in this paragraph an instruction to the effect that if the flavoring extract in the possession of the accused was for culinary purposes and not for beverage purposes, it should be excluded from their consideration in determining the guilt of the appellant by the quantity of liquor in his possession. So far as there is evidence presenting the theory that the pear extract was for cooking purposes, the matter is covered by the charge of the court.

Our examination of the record leads us to the conclusion that no error is revealed. The judgment is therefore affirmed.

Affirmed.

ON MOTION FOR REHEARING.