Smyrle v. State , 107 Tex. Crim. 663 ( 1927 )

The appellant was convicted of unlawfully transporting intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses that the state's witness J. A. Spivey, a constable, and W. F. Freeman, deputy constable, while travelling a public road at night, observed an automobile being driven down the road ahead of them. The officers finally overtook the car, which had been stopped partly in the road and the lights turned out, and observed someone seated therein. They stopped their automobile and asked what the trouble was but received no reply, whereupon the officers turned a flashlight on the car and discovered the appellant in an intoxicated condition. They also observed a half-carton of fruit jars filled with some kind of liquid and detected the odor of whiskey. Going to the car in which appellant was seated, the officers found 11 quarts of whiskey and a sack containing bottles filled with home brew.

The appellant did not testify or offer any evidence.

There are three bills of exception in the record.

Bills 1 and 2 complain of the action of the court in permitting the state's witnesses Spivey and Freeman to testify to finding the whiskey in the car, the objection being that they had no search warrant authorizing them to search said car. It is contended that by reason of the search without a warrant, the testimony objected to in this bill was in violation of law. We are not in accord with this contention. The record discloses that the state's witnesses, upon stopping their car and flashing a light on the other automobile, recognized the appellant and detected the odor of whiskey, and also observed that appellant was in a state of intoxication. These facts, coupled with the further fact that the appellant had stopped his car partly in the road and turned out the lights, were sufficient to authorize the officers to search said automobile without a search warrant, under Art. 691, P. C. Also see McIlveene v. State, 281 S.W. 873; Battle v. State,290 S.W. 762, and Manrique v. State, 291 S.W. 231. Besides, since the appellant was driving the automobile while intoxicated in the presence and view of the officers, he was guilty of a felony, which authorized the officers to arrest him, and the right to search the car would follow.

In bill No. 3, complaint is made to the argument of the District Attorney, which was to the effect that the appellant was carrying the whiskey in question to a party for the purpose of selling it to boys and girls, and that when he sold it and the boys and girls drank some of it, it would cause the girls to ruin themselves and do things they would not do otherwise. Upon objection by appellant, the court instructed the District Attorney to argue only the facts, to which the Attorney replied that he was only drawing his conclusions from the testimony. The state's witness Sides testified that appellant borrowed his automobile about 10:00 o'clock on the night of the alleged offense and stated that he wanted it to go to the party at Flint. In view of the facts of the case and the qualifications of the court to this bill, and the further fact that appellant received the minimum punishment, we are of the opinion that this bill of exception, as presented, shows no reversible error.

The judgment of the trial court is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.