Young v. State , 115 Tex. Crim. 560 ( 1930 )

We cannot agree with appellant's contention that in receiving the evidence set out in our original opinion Art. 727a (Acts 41st Leg., 2d C. S., Chap. 45) was offended against. It appears that without probable cause authorizing it the officer stepped on the running board of appellant's car and looked over in the back seat but discovered nothing; he then stepped off the running board. The officer said that "if nothing else had happened appellant could have driven right on and nobody would have paid any attention." What did happen was this: After the officer got off the car and was not further searching or attempting to search it appellant drove the car some ten feet farther on and then stopped it, jumped out and ran away with a sack in his hand which he threw in a ditch some fifty yards from the car. The officer pursued him one-half mile farther but never caught him at that time. The sack was found to contain several bottles of whisky. It was not discovered in a search of the car. If appellant had not jumped from the car and ran away with it in his hand it would not have been discovered at all. Assuming that the officer's act in searching the car was unauthorized, that had been abandoned. It was the suspicious act of appellant in thereafter jumping from the car and running away with the sack in his hand that led to his pursuit and the discoveries incident thereto.

Appellant cites Swanson v. State, 18 S.W.2d 1082, in support of his motion. We think it not closely in point. In that case the liquor was found in the car under what may have been an illegal search. Not so here. Owens v. State,112 Tex. Crim. 1, 13 S.W.2d 837, seems much nearer in point.

The motion for rehearing is overruled.

Overruled.