Washington v. StateWashington v. State
- Reporters:
- , ,
- Before:
- Morrow
Conviction is for transporting intoxicating liquor, punishment being three years in the penitentiary.
Eleven bills of exception are found in the record. In all of them appellant in different ways raises three questions, viz: (a) that the testimony of the officers as to what they found in appellant‘s automobile could not be legally received in evidence because the affidavit and search warrant only stated that the two affiants “believed and had good reason to believe” the automobile was being used in transporting whiskey and did not
“After he turned off of the highway up the road toward the fair ground he got out on the running board and held the steering wheel with one hand and turned up that turtle back and began to burst bottles of whiskey in the road. He threw out ten and broke nine of them. He was driving the car. He held the steering wheel with his left hand and was standing on the running board and he had the turtle back up and would reach in there and get them and throw them out. He threw out ten containers. They were half-gallon fruit jars — the square kind. As we passed over the territory where those were thrown out it smelled like whiskey. Nine of the jars broke. The other jar rolled out and rolled up against the bank and didn‘t break and we picked it up as we came back over the road. We finally overtook him. When we overtook him we got out and searched the car and found two half-gallons. They were the same kind of jars he threw out; square jars. They were two half-gallons of corn whiskey. The defendent is the man who was driving the car and throwing out the whiskey * * * * Whiskey was in the jar that we picked up that we saw him throw out. We actually recovered a gallon and a half of whiskey. Four and a half gallons — nine half-gallon containers — were broken along the way. It was whiskey.”
The testimony of the other officer is substantially the same as that quoted.
“It shall be unlawful for any person or peace officer, or state ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any person without having first obtained a search warrant as required by law.”
Appellant was committing a felony in the presence of the officers. It became known to them without any act on their part which was violative of the foregoing statute and this being true they had a right under
The judgment must be affirmed and it is so ordered.
Affirmed.
ON MOTION FOR REHEARING.
Addendum
We quite agree with the appellant in his announcement that “an unlawful tresspass in the beginning does not become lawful by reason of the things found.” We endeavored to make plain that such was the view of this court in the case of Odenthal v. State, 290 S.W. 743; also Battle v. State, 290 S.W. 762. The announcement has been reiterated in several cases which are not yet reported.
In holding in the present instance that the searching officers in advance of the search were possessed of “probable cause” as that term is defined in the cases mentioned, and in Carroll v. United States, 267 U.S. 132, no transgression of the rule stated is shown. The facts in possession of the officers were such as to authorize them to search the automobile without the necessity of a search warrant. We will add that the facts within the knowledge of the officers before the search were such as to justify the arrest of the appellant without a warrant, it being manifest that he was perceived by the officers in the commission
The arrest and search of the appellant are deemed to have been legal and inconsonance with the authorities above mentioned. The information obtained through the search was therefore not improperly received.
The motion for rehearing is overruled.
Overruled.