Pendergrass v. State

The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for one year.

Jack O'Burk, accompanied by appellant, was driving an automobile along a street in the city of Port Arthur at a rate of speed of from thirty-five to forty miles an hour. Police officers overtook them and forced them to stop. A search of the car disclosed some jugs of whisky between appellant's feet. Altogether, the officers found in the car more than a gallon and a half of whisky. Appellant did not testify, and introduced no testimony on the question of his possession and transportation of the whisky. He made application for a suspended sentence, and offered testimony to the effect that he had never been convicted of a felony and that his general reputation for being peaceable and law-abiding was good.

Bill of exception No. 1 presents the following occurrence: Appellant asked each juror, on his voir dire examination, whether or not he was a prohibitionist. The court refused to permit the question to be answered. It is recited in the bill of exception that appellant was seeking information for the purpose of enabling him to intelligently exercise his peremptory challenges. It is not shown in the bill that any of the jurors were prohibitionists. The opinion is expressed that the bill of exception is insufficient to reflect reversible error. From volume 4, page 373, Texas Jurisprudence, we quote the following: "A bill complaining of the refusal to permit the appellant to ask a question of a venireman is insufficient where it does not show what his answer would have been, or that the question would have elicited an answer disqualifying him or rendering him objectionable to the appellant, or does not show that he served on the jury which tried the appellant."

The court permitted appellant's counsel to ask each member of the panel whether he had any bias for or prejudice against the liquor law, or against a person charged with a violation thereof. Also each juror was permitted to state whether he could give a person charged with a violation of the liquor law the same fair and impartial trial that he would in any other character of case. It would have been proper for appellant's counsel to elicit from each juror whether or not he was a prohibitionist, in order that he might intelligently exercise his peremptory challenges. Kerley v. State, 89 Tex. Crim. 199,230 S.W. 163; Belcher v. State, 96 Tex. Crim. 382,257 S.W. 1097; Belcher v. State, 96 Tex. Crim. 561,258 S.W. 815; Benson v. State, 95 Tex. Crim. 311,254 S.W. 793. The right to appear by counsel, guaranteed by the Bill of Rights, carries with it the right of counsel, within reasonable limits, to examine each juror individually in order to prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute. Naugle v. State, 118 Tex.Crim. Rep., 40 S.W.2d 92, and authorities cited; Plair v. State, 102 Tex.Crim. Rep.,279 S.W. 267.

Appellant objected to the testimony of the officers touching the result of the search, on the ground that no search warrant had been issued, and that the facts and circumstances were not sufficient to authorize a search upon probable cause. The arresting officer testified before the court that he and his companions followed the car driven by O'Burke and appellant because they had information that they were hauling liquor. He said that the parties drove down the street at the rate of speed of from thirty-five to forty miles an hour, and that they followed them in a police car for some distance before they could stop them. He testified that they sounded the siren on the car to let them know that they were officers. After the car had stopped, according to the testimony of the officer, he looked over toward the car and saw some jugs in it. An investigation disclosed that the jugs contained whisky. We are unable to agree with appellant that the facts and circumstances detailed by the officer were not sufficient to constitute probable cause justifying the search of the automobile without a warrant. "Probable cause" has been defined: "A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Landa v. Obert,45 Tex. 539. See, also, Murray v. State, 115 Tex. Crim. 79,29 S.W.2d 354, and authorities cited.

The existence of the facts and circumstances constituting probable cause was not disputed. Hence it was not error for the court to refuse to instruct the jury that if they had a reasonable doubt as to whether the officers making the search had probable cause they would acquit appellant.

In bill of exception No. 8 complaint is made of the argument of the district attorney in which he stated that appellant had brought no testimony before the jury to the effect that the liquor in question was not whisky. It is recited in the bill of exception that appellant did not testify. It is not shown in the bill of exception that no person other than appellant was in a position to contradict the testimony that the liquor was whisky. We quote from volume 4, page 397 of Texas Jurisprudence, as follows: "A bill complaining of a statement that certain testimony or facts had not been denied or disproved, or of a reference to the absence of evidence to show certain facts, or of an argument challenging the jury to explain certain matters as being an indirect reference to the failure of the accused to testify, is insufficient when it does not show no one other than the appellant was in a position to contradict the testimony or to disprove the statement, or to explain the matter."

An examination of all of appellant's contentions leads us to the conclusion that reversible error is not presented.

The judgment is 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.

Affirmed.

ON MOTION FOR REHEARING.