
    SANDOVAL v. STATE.
    (No. 10423.)
    Court of Criminal Appeals of Texas.
    Nov. 17, 1926.
    Writ of Certiorari Granted Dec. 22, 1926.
    On Motion to Reinstate April 6, 1927.
    1. Criminal law <&wkey;!086(l3, 14), 1087(f) — Appeal will be dismissed on record’s failure to show judgment on verdict and action on motion for new trial or notice of appeal (Code Cr. Proc. 1925, art. 827).
    Where record fails to show that judgment was ever entered on verdict of guilty or sentence ever passed on defendant, and, although containing motion for new trial, fails to show that it was ever acted on or notice of -appeal given, under Code Cr. Proc. 1925, art. 827, appeal will be dismissed, since final judgment is prerequisite to appeal.
    On Motion to Reinstate.
    2. Criminal law <&wkey;394 — Evidence, secured by officers on search after arrest without warrant, held admissible when arrest was warranted (Code Cr. Proc. 1925, arts. 212, 213, 727a).
    Where officers were warranted in making arrest, under Code Cr. Proc. 1925, arts. 212, 213, authorizing arrest of offender without warrant in case of felony in officers’ presence, evidence obtained in search thereafter was not inadmissible, under art. 727a, since, having made a legal arrest, they were privileged to search.
    Appeal from District Court, Tyler County; Thos. B. Coe, Judge.
    F. Sandoval was convicted for transporting intoxicating liquor, and he appeals.
    Affirmed.
    G. C. Lowe, of Woodville, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Tie record before us shows an indictment charging appellant with transporting intoxicating liquor, and the verdict of a jury finding him guilty and assessing his punishment at one year in the penitentiary. If judgment was ever entered on the verdict, or if sentence was ever passed on appellant, the record fails to show it. Final judgment is a prerequisite to appeal. Washington v. State, 91 Tex. Cr. R. 832, 240 S. W. 542. See, also, notes under article 796, Vernon’s Ann. C. O. P. vol. 3 (1925). The record contains a motion for new trial, but fails to show that it was ever acted on by the court, or that notice of appeal was given. Article 827, O. C. P. (1925); Griffin v. State, 76 Tex. Cr. R. 306, 174 S. W. 351; Parish v. State, 77 Tex. Cr. R. 19, 177 S. W. 93; Haynie v. State, 92 Tex. Cr. R. 45, 241 S. W. 478.

The appeal must be dismissed.

On Application for Certiorari.'

MORROW, P. J.

The motion of the appellant for a writ of certiorari to the clerk of the district court of Tyler county, requiring him to incorporate in the transcript the judgment, sentence, and notice of appeal in the above styled and numbered cause, is granted.

On' Motion to Reinstate.

MORROW, P. J.

The appeal was dismissed at a former day of this court on account of a defective record. The record having been perfected, the case is now properly before the court for disposition.

We find three bills of exceptions. Each of them relates to the objection to the testimony of the officers upon the ground that the information conveyed was inadmissible under the statute excluding testimony acquired through an illegal search. See Article 727h, O. O. P.

As we understand the record, the appellant stopped his automobile at a point near some boarding cars in which some Mexican railway hands were living. One Williams was with the appellant, and both got out of the car. The sheriff and his deputy.had gone to the point for the purpose of watching them. They observed the appellant and the Mexicans around the automobile and also going back and forth to the boarding cars, making a good many trips. The appellant and Williams were seen to leave the car, Williams having a sack and the appellant 8 bottles in his pockets, some of which were exposed to view and some of which were in his hands. He was arrested, and the bottles were found to contain whisky.

A felony, committed in the presence and view of an officer, justifies the arrest of the offender without a warrant. Articles 212, 213, C. C. P. 1925; Hodges v. State, 6 Tex. App. 620, and other cases collated in Branch’s Ann. Tex. P. C. § 1979; Crippen v State, 80 Tex. Cr. R. 293, 189 S. W. 496. It is not to be understood that an arrest may be made on mere suspicion. Article 1, § 9 of the Constitution inhibits this. See Lacy v. State, 7 Tex. App. 411; Odenthal v. State (Tex. Cr. App.) 290 S. W. 743.

In the present case, there seems to have been more than a mere suspicion. There was probable cause to warrant the belief by the officers that the bottles contained whisky or intoxicating liquor. They apparently were warranted under the facts in making the ar rest upon the ground that an offense had been committed in their presence. Having made a legal arrest, they were privileged to search. See Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145; Samino v. State, 83 Tex. Cr. R. 481, 204 S. W. 233; Harper v. State, 84 Tex. Cr. R. 345, 207 S. W. 96; Jones v. State, 85 Tex. Cr. R. 538, 214 S. W. 322. In our judgment, the facts in the present case do not bring it within the purview of article 727a, supra. See Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762.

The judgment is affirmed. 
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