
    HUNTER v. STATE.
    (No. 11091.)
    Court of Criminal Appeals of Texas.
    Nov. 2, 1927.
    Rehearing Denied Dec. 14, 1927.
    1. Intoxicating liquors (&wkey;236(20) — Evidence held sufficient to sustain conviction of transporting liquor.
    Evidence held sufficient to sustain conviction of transporting intoxicating liquor.
    2. Searches and seizures <&wkey;3(l) — Search of automobile on public highway may be made without warrant, where seizing officer has knowledge of facts constituting “probable cause.”
    Search of an automobile on public' highway may be made without .warrant, where seizing officer has knowledge or information of facts constituting probable cause; “probable cause” being reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant cautious man in belief that person accused is guilty of offense for which he is charged.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Probable Cause.]
    3. Criminal law &wkey;>394 — Intoxicating liquors &wkey;>249 — Sheriff, seeing jar in automobile stopped on highway and smelling liquor on breath of motorists, was warranted in searching automobile without warrant, and testimony regarding search- was properly admitted in liquor prosecution.
    Where sheriff saw fruit jar sticking out of cotton sack through open door of automobile stopped on highway and smelled, liquor on breath of motorists fixing tire, he had knowledge of facts sufficient to constitute probable cause warranting his searching automobile without warrant, and testimony touching results of search was properly received in evidence in prosecution for transporting liquor.
    Commissioners’ Decision.
    Appeal from District Court, Motley County ; J. H. Milam, Judge.
    Jim Hunter was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    T. J. Sanders, of Matador, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for one year and one day.

About 1 o’clock in the afternoon the sheriff of Motley county saw appellant and one Bill Nelson together in a ear, driving north on the street and highway that leads from Matador to White Star and Flomot. On the same afternoon, in going to the Flomot community, said officer traveled the same road that had been traveled by appellant and his companion. The car in which appellant and Nelson were riding had been stopped in the road when the officer reached them, and appellant and Nelson were fixing a flat tire. No one else was with them. The officer stopped his car just behind them and talked to them in a sympathetic manner about the tire trouble they were having. Appellant was working on the casing, and Nelson was standing up. The sheriff walked around where appellant was working on the easing and found that the door of the car was standing open. He saw in the ear an old piece of cotton sack which was wrapped around something. The bottom of a fruit jar was sticking out of the sack. He reached in the ear and picked up the fruit jar from under the sack, took the top off of the jar, and smelled of it. It contained whisky. The officer testified that he could tell during the time he was talking to appellant and his companion that they had been drinking, as he could smell liquor on their breath. At the time of taking the liquor from the car, the officer said to appellant and his companion, “Boys, what have you got here?” He received no reply to his question.

Appellant offered no testimony on the trial of his case.

By bill of exception No. 1, appellant challenges the sufficiency of the evidence. We are unable to agree with appellant that the evidence is insufficient to sustain the verdict of the jury and the judgment rendered thereon.

Appellant next complains of the action of the court in admitting over his objection the testimony of the sheriff touching the results of the search, on the ground that said officer was not armed with a search warrant and that there were no facts or circumstances showing that the sheriff had probable cause to believe that the car contained intoxicating liquor.

The search of an automobile upon the public highway may be made without a warrant, where -the seizing officer has knowledge or information of facts constituting probable cause. Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged, Landa v. Obert, 45 Tex. 539. We are of the opinion that the facts hereinbefore recited were sufficient to constitute probable cause as above defined, and that such facts were sufficient to warrant the officer in searching appellant’s automobile. It follows that the testimony touching the results of the search was properly received in evidence.

Arfpellant did not testify and offered no witnesses on Ms own behalf. We find nothing in the record that would suggest an affirmative defense. Appellant’s complaint that the court erred in not presenting to the jury in an affirmative manner the defensive theory cannot be sustained.

Finding no error, the judgment is affirmed.

PER CURIAM. 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.

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that the evidence is insufficient to support the verdict, and on account of his contention we have again carefully examined the facts. No doubt arises in our minds as to it measuring up to the requirements of the law.

The motion for rehearing is overruled. 
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