
    McPHERSON v. STATE.
    (No. 12193.)
    Court of Criminal Appeals of Texas.
    Feb. 13, 1929.
    Rehearing Denied March 27, 1929
    W. O. Shoults, of Longview, for appellant. A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Appellant was indicted for the transportation of intoxicating liquor in one count and with the possession of same in a second count. A verdict of guilty was returned and his punishment assessed at one year in the penitentiary.

A former appeal of this case will be found ¿reported in 108 Tex. Cr. R. 265, 300 S. W. 936.

Only one bill of exception appears in the record. This reflects the action of the court in permitting the officer to testify to what he saw and found in appellant’s automobile, over the objection that tbe officer was not armed with a search warrant and that no probable cause existed for its search. The court qualifies the bill with the statement that he retired the jury and heard evidence and decided that probable cause did exist for the search of the automobile in question. This testimony is brought up and shows that the officer had received information that appellant had been delivering whisky illegally, and particularly at the houses of certain negro women. While the officer was looking through the house of a negro woman, appellant drove up in front. He went out and took a six-shooter off of appellant. He then discovered whisky in tbe car. He testified: “In order to see this gallon jug of whisky I did not have to remove or molest any portion of his car or property, didn’t have to turn a thing back or touch anything. The gallon jug was setting out perfectly open. I just had to use my sense of sight to see it. I did not touch his person or car in order to see it. ⅜ * * i expected I might find him at any time with liquor; I beard of other places in town where he delivered whisky. One time I had information from you he would deliver whisky at Ford’s store.” The officer further testified that he was not certain that what he saw in the car was whisky until be smelled it, but that it looked like whisky.

We are of the opinion that probable cause existed for the search, if any could be said to have occurred, and that there was no error in the admission of the officer’s testimony. Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762; Rochelle v. State, 107 Tex. Cr. R. 79, 294 S. W. 860; Hardiway v. State, 108 Tex. Cr. R. 659, 2 S.W.(2d) 455; Washington v. State, 107 Tex. Cr. R. 214, 296 S. W. 512; Peoples v. State, 107 Tex. Cr. R. 261, 296 S. W. 536; Hughes v. State, 108 Tex. Cr. R. 42, 298 S. W. 894; Mims v. State, 108 Tex. Cr. R. 313, 1 S.W.(2d) 303; Moore v. State, 107 Tex. Cr. R. 24, 294 S. W. 551; Plant et al. v. State, 106 Tex. Cr. R. 330, 292 S. W. 550; Coleman v. State (Tex. Cr. App.) 11 S.W.(2d) 795 ; Whitworth v. State, 105 Tex. Cr. R. 641, 290 S. W. 764; Silver v. State (Tex. Cr. App.) 8 S.W.(2d) 145; Webb v. State (Tex. Cr. App.) 8 S.W.(2d) 165; Odenthal v. State, 106 Tex. Cr. R. 1, 290 S. W. 743.

The evidence being sufficient, the judgment is affirmed.

PER OURIAM. 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.  