
    MIMS v. STATE.
    (No. 11199.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    Searches and seizures <g=»3 (I) — Officers, seeing defendant on horse with jug attached to saddle, held to have probable cause for search without warrant.
    Officers, who were watching for defendant and, on his appearance on horseback with jug tied to saddle, approached defendant, who had 'stopped and hitched his horse, whereupon defendant ran away, held to have had probable cause, justifying search without warrant.
    Appeal from District Court, Walker County ; Carl T. Harper, Judge.
    H. L>. Mims was convicted of unlawful possession of intoxicating liquor for the purpose of gale, and he appeals.
    Affirmed.
    M. E. Gates, of Huntsville, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State/
   MORROW, P. J.

The unlawful possession of intoxicating liquor for the purpose of sale is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

According to the state’s evidence, the officers were hiding in a cluster of bushes waiting for the appellant to arrive with some whisky. He soon appeared on horseback with a jug tied to the horn of the saddle. There were several fires built with negroes around them. Appellant stopped and hitched his horse. After waiting a while, the officers got up and started in the direction of the appellant and he ran away. They took possession of the horse and the jug. The jug contained whisky. The officers testified that they had a search warrant which was not produced. Its loss or diligence to produce it is not satisfactorily shown.

Two bills of exceptions are presented, complaining of the receipt of the officers’ testimony without the production of a search warrant. If the circumstances were not such as to justify the arrest of the appellant or the search of his horse without a warrant, the receipt of the testimony showing the result of the search would be questionable. See Chorn v. State (Tex. Cr. App.) 298 S. W. 290; Henderson v. State (No. 11178) 1 S. W. (2d) 300, not yet [officially] reported. The bills are qualified, however, with a recital of the facts in substance as above taken from the statement of facts, and with the further statement that the court regarded the knowledge which the officers possessed sufficient to meet the demand of the law for “probable cause” and to justify the search of the horse without a warrant. In this conclusion we think the learned trial judge was justified by the facts before him. See Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762.

The judgment is affirmed.  