Lead Opinion
The offense is transporting intoxicating liquor, the punishment confinement in the penitentiary for one year and one day.
About 1 o’clock in the afternоon the Sheriff of Motley County saw appellant and one Bill Nelson togеther in a car driving north on the street and highway that leads from Matador to White Star and Flomot. On the same afternoon, in going to the Flomot community said оfficer traveled the same road that had been traveled by apрellant and his companion. The car in which appellant and Nelson were riding had been stopped in the road when the officer reached them, and appellant and Nelson were fixing a flat tire. No one else was with them. The officer stopped his car just behind them and talked to thеm in a sympathetic manner about the tire trouble they were having. Appellant was working on the casing and Nelson was standing up. The sheriff walked around whеre appellant was working on the *338 casing and found that the door of the car was standing open. He saw in the car an old piece of сotton sack which was wrapped around something. The bottom of a fruit jar was sticking out of the sack. He reached in the car and picked uр the fruit jar from under the sack, took the top off the jar and smelled of it. It contained whiskey. The officer testified that he could tell during the time he was talking to appellant and his companion that they had been drinking ás he could smell liquor on their breath. At the time of taking the liquor from the car the officer said to appellant and his companion: “Boys, what have you got hеre?” He received no reply to his question.
Appellant offered no testimony on the trial of his case.
By bill of exception No. 1 appellant challenges the sufficiency of the evidence. We are unable to agree with appellant that the evidence is insufficiеnt to sustain the verdict of the jury and the judgment rendered thereon.
Appellаnt next complains of the action of the court in admitting over his objeсtion the testimony of the sheriff touching the results of the search on the ground that said officer was not armed with a search warrant and that there werе no facts or circumstances showing that the sheriff had probable cаuse to believe that the car contained intoxicating liquor.
The search of an automobile upon the public highway may be made without a wаrrant where the seizing officer has knowledge or information of facts constituting probable cause. Battle v. State,
Appellant did not tеstify and offered no witnesses on his own behalf. We find nothing in the record that would suggest an affirmative defense. Appellant’s complaint that the court еrred in not presenting to the jury in an affirmative manner the defensive theory cannot be sustained.
Finding no error, the judgment is affirmed.
Affirmed.
*339 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and аpproved by the Court.
Addendum
ON MOTION FOR REHEARING.
Appellant insists that the evidence is insufficient to suрport the verdict, and on account of his contention we have again carefully examined the facts. No doubt arises in our minds as to its measuring up to the requirements of the law.
The motion for rehearing is overruled. Overruled.