
    BATTLE v. STATE.
    (No. 10505.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1927.)
    1. Criminal law <®=394 — Evidence held to show probable cause for search of automobile without warrant and render admissible evidence disclosed thereby (Pen. Code 1925, art. 690; Const, art. I, § 9; Acts 39th Leg. [1925] cc. 49, 149).
    In prosecution for unlawfully transporting liquor, evidence, particularly that showing special construction of defendant’s car, held to show probable cause justifying search and seizure without warrant, under Pen. Code 1925, art. 690, notwithstanding Const, art. 1, § 9, and Acts 39th Leg. (1925) c. 149, and hence admission of evidence obtained by such search was not error, under Acts 39th Leg. (1925) e. 49.
    2. Criminal law <&xo394-s-Under statute where probable cause for search_without warrant of automobile exists, evidence disclosed is admissible notwithstanding general statute (Pen. Code 1925, art. 690; Const, art. I, § 9; Acts 39th Leg. [1925] cc. 49, 149).
    Under Pen. Code 1925, art. 690, if there is probable cause for search without warrant of automobile being used in presence of officer for unlawful transportation of liquor, evidence disclosed by such search is admissible, notwithstanding Const, art. 1, § 9, Acts 39th Leg. (1925) cc. 49 and 149.
    3. Searches and seizures <§=>3(l) — Automobile on highway may be searched without warrant, where officer before seizure has knowledge or information constituting probable cause.
    The search of an automobile on a public highway may be made without warrant, where seizing officer has knowledge or information of facts constituting probable cause, though legality of search must be determined on existence of probahle cause before search and not justified by knowledge disclosed by search.
    4. Criminal law ⅜=»736(I) — Existence of probable cause for search of automobile without warrant is largely question of fact.
    Whether probable cause existed for search of automobile without warrant is largely a question of fact.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    R. Battle was convicted of unlawfully transporting intoxicating liquor, and he appeals.
    Affirmed.
    See, also, 279 S. W. 842.
    Scott & Casey, of Marshall, and Scott, McLean & Sayers, of Fort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the" State.
   MORROW. P. J.

The offense is unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

In bill of exceptions No. 3 complaint is made of the receipt of the testimony of officers Glasscock and Ezell to the effect that upon the search of the appellant’s automobile it was found to contain 205 bottles of whisky.

Opposing the legality of the receipt of the testimony of the officers in question, appellant relies on article 1, § 9, of the Bill of Rights, forbidding unreasonable searches and seizures without probable cause supported by oath or affirmation, and on chapter 149, Acts •of 39th Leg., which reads thus:

“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.”

And chapter 49, acts of the same session, which reads:

“No evidence obtained by an officer or other person in violation of any provision of the constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on trial of any criminal case.”

In article 690, P. C. 1925, it is declared that any automobile used for the unlawful transportation of intoxicating liquor is a public nuisance, and any automobile used in the presence or view of a peace officer of this state for the unla'wful transportation of intoxicating liquor shall be seized without a warrant. This article, construed in connection with the provision of the Constitution forbidding searches and seizures without probable cause, is, in our .-judgment, sufficient authority to sanction the receipt in evidence of the testimony showing the result •of the search in the present case, provided the search was made upon probable cause, that is to say, upon “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the pefson accused is guilty of the offense with which he is charged.” Landa v. Obert, 45 Tex. 530.

In the case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, it is said:

“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.”

It is also said:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on a chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.”

And further:

“The right to search and the validity of tile seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.”

The uniform rule controlling the state courts in holding the seizure legal, as well as those holding it illegal, is in consonance with the announcement in Carroll v. United States, supra. That is to say, that the search of an automobile upon the public highway may be made without warrant where the seizing officer has knowledge or information of facts constituting “probable cause” as above defined. The legality of the search is to be determined alone upon the existence of “probable cause” before the search is made, and is not to be justified by knowledge ascertained through the search. The search cannot be justified upon mere suspicion.

The bill of exceptions under consideration, as prepared and presented to the trial judge, recites that after the state had shown that the appellant was traveling in an automobile at a lawful rate of speed, he was arrested by the officers, and that from a casual look at the car the officers could not tell what was in it, and that no whisky or the semblance thereof was apparent from a casual look at the car, and that there was no testimony that it was suspected as containing whisky. If there was nothing before this court'touching the legality of the search of the car other than the above-mentioned recitals, we would be constrained to hold the search illegal. The bill of exceptions, however, was not approved by the trial judge without qualification, but is qualified by the statement that the witness testified “that the car was specially built and. he could tell by the looks of it.” The bill coming here thus qualified and containing the statement that not all of the evidence-which moved the judge to admit the testimony was embraced in the bill, this court finds it necessary to look at the evidence.

From the testimony of the witness Ezell, the following is quoted:

“It was a Dodge touring car with false apartment in the back part of the front seat, also the back seat. There was a hole cut into the back of the front seat where you could get the whisky down into, where the springs should have been. It was built out; you could notice by looking at the car built out, heavier than ordinary ear, that was; the back of the seat, you could notice the back seat had been set back further than it was when the car was built, had been moved back; had to take the inside handles of the door off so could shut it, because the seat had been set back and couldn’t fasten with handles on it. Between the drive shaft and frame was the tin box or troft and underneath the front and under the back seat was a place for the whisky.”

At just what stage of the matter the facts recited by Ezell came to his attention is not made as clear as could he desired. As stated in Carroll v. United States, supra, the law required that probable cause exist antecedent to the search. The qualification of the bill of exceptions and the ruling of the trial judge admitting the testimony implies that the evidence disclosed that the officers had sufficient information to constitute probable cause before the search. In other words, the court’s ruling is regarded correct unless the contrary is shown by the record. The testimony which has been quoted is deemed sufficient to warrant the officers in searching the appellant’s automobile, and to warrant the court in receiving the testimony relating to the result of the search. Whether “probable cause” existed to authorize the search is largely a question of fact. We would not feel warranted in holding, as a matter of law, that “probable cause” was not shown to have existed in the present instance.

The judgment is affirmed. 
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