McBride v. State
290 S.W.2d 648
Tenn.
1956
Check Treatment
Mb. Justice SwepstoN

delivered the opinion of the Court.

Defendant was convicted for the transportation of more than one gallon of intoxicating liquor with his *102 punishment fixed at one year and a day’s confinement in the State Prison from -which he has appealed!

A member of the Tennessee Highway Pátról had some general information that the’defendant was transporting liquor from either Newbern or Dyersburg into Henry County over Highway No. 54. The description of the vehicle was a green Hudson automobile. It is conceded by the State that this general information alone was not definite enough to warrant an arrest. The next day after receiving this information, this officer was driving along said highway when he met the defendant in a car of the above description. As soon as he could turn his car around he began following the defendant’s car but it was out of sight before he could get started in the opposite direction. He then radioed a message to another patrolman stationed at the City of Paris instructing him to intercept the car.

This other patrolman drove in his car to a place near a school and undertook to set up a road block by placing his car in the center of Highway No. 54 and flashing a warning light. Defendant however pulled to the left and drove his car around that of the patrolman and immediately accelerated his speed as soon as he discovered that the patrolman was pursuing him. The patrolman testified that these two vehicles reached a speed of about 85 miles per hour. This pursuit continued for some indefinite distance when the defendant turned his car off of the main highway onto a road which led to the former Camp Tyson, at which point he found that his further progress was blocked by the gate across this road and it was necessary for him to stop his car. The patrolman then came up to the defendant’s car and caught defendant by the arm after he had gotten out of his car and *103 was standing beside it and placed Mm nnder arrest for reckless driving. He then pnt Mm in tbe patrol car and by tbis time tbe other patrolman bad arrived and tbe two of them looked into tbe defendant’s car and found that there were four or five half-cases of whiskey plainly visible on tbe floor of tbe car in front of tbe back seat.

Subsequently they .obtained a warrant for tbe search of tbe trunk of tbe car and there found an additional amount of whiskey. Tbe trial judge ruled however that tbe State could only show tbe amount of whiskey found in front of tbe back seat but ruled out the whiskey found in tbe trunk.

Tbe first insistence of defendant on this appeal is that tbe court erred in admitting evidence of tbe finding of tbe whisky on tbe back seat of bis car. He relies upon tbe line of cases Robertson v. State, 184 Tenn. 277, 198 S.W.2d 633, where tbe driver of tbe automobile was arrested in tbe sense that be was stopped upon tbe highway by tbe officer under tbe pretext of an inspection of Ms driver’s license whereas tbe real purpose was to search for intoxicating liquor; also tbe case of Epps v. State, 185 Tenn. 226, 205 S.W.2d 4, where tbe automobile was stopped by reason of general information and suspicion that there might be more than one gallon of liquor being transported.

In these cases tbis court said that tbe stopping of these automobiles without a warrant was a mere fishing expedition and that tbe same would not justify a search for intoxicating liquor. We do not tMnk those cases are applicable, here, however. While it is. true, that .the officers were trying to stop tbe defendant, they, did not succeed in doing so. It is conceded correctly by tbe. State that if they bad stopped him at tbe attempted road block ■ *104 on Highway 54, it would have been an unlawful arrest. The defendant bypassed this attempted road block, however, and instead of continuing on down Highway 54 he turned off on a side road where he himself was forced to come to a halt when he reached the gate of the Camp Tyson property and in reaching that point he was guilty of reckless driving, so, that being an offense committed in the presence of the pursuing officer, it justified the arrest. Under those circumstances we think the officer was justified in going up to the car and in observing the whisky that was plainly visible therein. These assignments are therefore overruled.

Assignments 4, 5, and 9 claim prejudice and that the court improperly denied a mistrial by reason of the fact that the State’s witnesses were not able to state definitely whether the liquor which was produced before the jury was that found on the floor in front of the rear seat or that which was found in the trunk, the court having ruled out the latter.

After the liquor was taken from defendant it was turned over to the Sheriff and the two batches of liquor were not separately marked but the officers testified that the liquor exhibited was a part of the liquor that was taken from the automobile although they could not say from which part of the automobile it was taken. The court stated that he allowed the liquor to be introduced only for the purpose of showing the quantity. We do not see how the defendant was prejudiced however because the officers definitely testified as to the quantity of liquor that they saw on the floor in front of the rear seat as being substantially more than 1 gallon. These assignments are overruled. Next the complaint is made that the jury after some deliberation returned a verdict of guilty *105 of receiving, transporting and possessing, but the conrt informed them that they conld find defendant guilty of only one of the offenses charged in the indictment, since all three grew out of the same transaction. The court instructed them to deliberate further, after which they returned their verdict finding him guilty of transporting more than one gallon.

It is insisted by defendant that the. court erred in not accepting the first verdict of the jury. There is no merit in this contention. The judge acted strictly in accordance with his duty in sending the jury back to correct their verdict. See Alexander v. State, 189 Tenn. 340, 225 S.W. 2d 254; Riley v. State, 189 Tenn. 697, 227 S.W.2d 32, and Waddle v. State, 112 Tenn. 556, 82 S.W. 827.

Complaint is made that the court did not charge the jury with regard to the punishment to be assessed until after they had found defendant guilty, after which the court then charged with reference to the punishment and permitted the introduction of evidence of previous similar violations of law by the defendant. There was no error in this because it could not have been handled in any other way. The other offenses were violations of the liquor laws and the introduction of same into evidence before the jury found him guilty would have violated the rule in regard to the admissibility of other offenses as fully discussed in Harris v. State, 189 Tenn. 635, 227 S.W.2d 8 and would have been prejudicial to defendant even though admitted solely for the purpose of aiding the jury in the determination of what punishment they should assess if they found him guilty.

All assignments are overruled and the judgment of the lower court is affirmed.