
    ROCHELLE v. STATE.
    (No. 10282.)
    Court of Criminal Appeals of Texas.
    April 27, 1927.
    Rehearing Denied June 1, 1927.
    1. Criminal law <&wkey;394 — Evidence held to show probable cause for search of automobile without warrant, and render admissible evidence disclosed thereby (Code Cr. Proc. 1925, arts. 4a, 727a).
    Evidence, particularly that of exposed carton containing jars in automobile at negro dance, held to show probable cause, justifying search without warrant, within Code Cr. Proc. 1925, art. 4a, and to render testimony obtained through the search admissible, notwithstanding article 727a, inhibiting testimony obtained through illegal search.
    2. Criminal law &wkey;a394 — Evidence of whisky in view held to justify search without warrant, and render admissible evidence disclosed thereby (Code Cr. Proc. 1925, arts. 212, 213, 727a).
    Evidence of whisky in automobile in plain view of officers held to justify search without warrant under Code Cr. Proc. 1925, arts. 212, 213, authorizing search contemporaneous with lawful arrest, and to render admissible evidence disclosed thereby, notwithstanding article 727a, inhibiting testimony obtained through illegal search.
    3. Criminal law &wkey;5590(2) — Refusal to postpone liquor ease to permit attorneys to interview witness held not error, in absence of conflict between witness’ testimony and defendant’s.
    Refusal to postpone liquor case to permit attorneys to talk with witness for whom attachment had issued held not error, where bill failed to show conflict, and statement of facts indicated there was no conflict between witness’ testimony and that of defendant.
    4. Criminal law <&wkey;>590(2) — Refusal to postpone liquor case to permit interviewing witness who was neighbor of defendant heid not error.
    Refusal to postpone liquor case to permit attorneys to interview witness held not error, where court stated in qualifying bill that witness was neighbor of defendant, and could easily have been interviewed.
    5. Criminal law <&wkey;1120(8) — •.Error held not shown in bills complaining of testimony of prior indictments struck out by court, in absence of showing offenses were misdemeanors (Const. U. S. Amend. 18; U. S. Comp. St. § 101381/2 et seq.).
    Error was not shown in bills complaining of introduction of testimony of former indictments of defendant and witness for the manufacture of a still and manufacturing liquor, where court struck out the testimony, in view of failure of bill to show that offenses were misdemeanors, not felonies, and Const. U. S. Amend. 18 and U. S. Comp. St. § ÍOIRS^ et seq., under which the offenses may be felonies.
    6. Criminal law <&wkey;396(2) — Officer’s testimony of conversation at time of arrest held admissible, where defendant first introduced evidence of part of same conversation (Code Cr. Proc. 1925, art. 728).
    Officer’s testimony of conversation with defendant at time of arrest held admissible, notwithstanding the statute inhibiting testimony of accused’s declarations under arrest, under Code Cr. Proc. 1925, art. 728, providing that whole of conversation may be inquired into when evidence of part thereof is given; accused having first introduced evidence of part of the conversation.
    7. Criminal law &wkey;>l 111 (3) — Bill, on ground of failure to instruct state must disprove evidence defendant was taking whisky home, heid without merit, in view of qualification.
    In prosecution for possessing liquor for purpose of sale, bill alleging failure to instruct that state must disprove defendant’s statement he was going to carry whisky lióme held without merit, under qualification to bill stating that jury was instructed to acquit, if in doubt whether defendant purchased liquor for beverage purposes.
    On Motion for Rehearing.
    8. Criminal law <®=>I092(11) — Defendant is not required to accept without objection bill as qualified by court.
    Defendant is not required to accept bill as qualified by court, but may refuse acceptance, or have the court note, over his signature, an objection.
    9. Criminal law <&wkey;1111 (3) — 'Trial court’s qualification of bill of exceptions adds nothing to testimony, but aids appellate court.
    Trial court’s qualification of bill of exceptions adds nothing to testimony, but aids the Court of Criminal Appeals.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Rudolph Rochelle was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed, and motion for rehearing overruled.
    King, Mahaffey & Wheeler, of Texarkana, for appellant.
    
      Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is the possession of intoxicating liquor for-the purpose of sale; punishment fixed at confinement in the penitentiary for one year and six months.

The appellant was apprehended at a social gathering of negroes. In his automobile there were three quart jars full of corn whisky, one fruit jar about half full, a “soda water bottle with, the 'odor of whisky, and two empty fruit jars with the odor of whisky in them.” This was at night at about 11 o’clock. Peace officers testified that they left Texarkana about 9 o’clock at night to go to the home of John Stuart, where there was a negro dance. They drove some 300 yards past Stuart’s house, and observed the appellant traveling on the road towards Texarkana. After he passed them, the officers turned back, and went to Stuart’s house. Upon reaching a point about 30 steps" from the house, they observed the appellant sitting in a car. As the officers approached, they saw other persons leaving the .appellant’s car and going towards the house. There were several persons around the car. As the officers approached, appellant started the engine. One of them said to him: “Hello, Rochelle, what is the excitement out here?” The appellant did not answer him. They observed in the appellant’s car a carton containing the articles mentioned above. According to the state’s testimony, appellant stated to the officers that he had been down to the river hunting pecans, and had bought the liquor from a negro whose name he did hot know; that he paid $7 for it.

Appellant testified in his own behalf, and introduced the testimony of other witnesses, to the effect that he had gone to the vicinity for the purpose of going fishing with two companions; that they concluded that they would like to have some whisky, and went to Stuart’s house for the purpose of procuring it; that while there the appellant purchased from a negro by the name of Ivey the whisky which was found in his car.

The testimony of the officers was opposed upon the ground that the information which they disclosed was obtained by an illegal search of the appellant’s automobile, and that the introduction of the testimony was inhibited by article 727a, C. C. P. 1925, in which testimony obtained through an illegal search was declared inadmissible. The position taken by the state is that the facts adduced antecedent tb the search were sufficient to show “probable cause” within the meaning of the Constitution and the statutes (article 4a, C. C. P. 1925), and was- therefore not subject to the objection made. In qualifying the bill, the court stated that the officers had no search warrant, but that' the w-hisky was in plain view of the. officers, and that no search was necessary to find it; that its possession was a felony committed in the presence of the officers; and that no warrant was needed for the arrest of the appellant. The evidence adduced apparently supports this accepted qualification of the appellant’s bill of exceptions, and brings the ease within the rule stated in Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 763; Odenthal v. State (Tex. Cr. App.) 290 S. W. 745; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. It also comes within the purview of the law which authorizes a search contemporaneous with a lawful arrest. See articles 212, 213, C. C. P. 1925: also Hodges v. State, 6 Tex. App. 620, and other cases collated in Branch’s Ann. Tex. P. C. § 1979; Crippin v. State, 80 Tex. Cr. R. 293, 189 S. W. 496; Carroll v. United States, supra; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, and other cases collated in Moore v. State (No. 10247) 294 S. W. 550, not yet [officially] 'reported. The above disposes of bills of exceptions Nos. 1 and 2.

Bill No. 3 reflects the complaint of the refusal of the court to postpone the proceedings in order that the attorneys might talk, with the witness Markham, for whom an attachment had been issued. From the bill it appears that the appellant desired to refrain from becoming a witness until after-Markham had been interviewed" by his attorneys. Markham arrived, it seems, about two hours after the appellant had testified. The bill fails to show that there was any conflict between the testimony of the appellant and that of Markham, and the statement of facts indicates that their testimony was not in conflict. Moreover, in qualifying the bill, the court stated that Markham and the appellant were neighbors, and that he could very easily have been interviewed before the announcement of ready for trial. The record indicates that the appellant and Markham were intimate friends.

Bill No. 4 complains of the introduction of testimony to the effect that the appellant had been previously indicted in the federal court in Miller county, Ark., for the manufacture of a still. It appears that this testimony was withdrawn by the court. In explanation of the bill the stenographer’s transcription of his notes is attached. It appears that state’s counsel asked the appellant if he had not been indicted in Arkansas, to which he replied: “Not in the state court, but in the federal court,” where he and the witness Marktiam were jointly charged with making a still. -Appellant also said that he and Markham had also been indicted in the federal court in Texas with manufacturing whisky. The objection urged to this testimony was that the offense was a misdemeanor. The court, being in doubt about it, struck out the testimony. We understand that under the federal statutes enforcing the prohibition embraced in the Eighteenth Amendment to the Constitution the offenses mentioned may be felonious. See U. S. Compiled Statutes, 1923 Cumulative Supplement, under the head of National Prohibition, § 10138% et seep

The matter was before this court in Ferguson’s Case, 101 Tex. Cr. R. 670, 276 S. W. 919, in which it was said that when, for the purpose of impeachment, proof is made that a witness has been charged with an offense which may be a felony, error is not shown in the receipt of the evidence, unless it appears from the bill of exceptions that in the particular instance it was merely a' misdemeanor. In the present ease the bill does not show error.

In bill No. 6 it appears that the witness Markham testified on cross-examination that he had been indicted in the federal court in Arkansas for manufacturing a still, and had been acquitted. He was asked how many times he had been indicted in Texas for felonies. He replied:

“Well, I was indicted twice in Texas that I know of. I don’t know whether it was an indictment or not, but I paid a fine for fighting; also for dynamiting fish.”

This was excluded. He then answered that he had been indicted in' Texarkana in the federal court for manufacturing liquor and in Arkansas for manufacturing a still. It appears that he was charged in the state court by a complaint with manufacturing a still, but was not. indicted. The remarks touching bill No. 5 are also applicable to bill No. 6.

From bill No. 7 it appears that objection was made to the testimony of Officer McDonald with regard to his conversation with the appellant at the time of his arrest, to the effect that in reply to a question appellant stated that, while hunting pecans down by the. river, he bought the whisky from a negro for $7. Against this testimony objection was urged» that it was violative of the confession statue, which inhibits the introduction of declarations of the accused made while under arrest for the purpose of inculpating him. In qualifying the bill, the court stated that the remarks were a part of the conversation between the appellant and the officers; that it was first introduced by the appellant; that is to say, that the appellant opened the conversation, and the testimony complained of is a part of the same conversation. This being true, it was admissible under the statute. Article 728, C. C. P. 1925.

Bill No. 8 raises the identical question as that discussed in bill No. 7. It was introduced in evidence that the appellant stated to the officers at or about the time of his arrest that he was going to carry the whisky home with him.

In bill No. 8 appellant insists that the court was in error in failing to instruct the jury that, as a predicate for conviction, the state was bound to disprove this statement. In qualifying the bill, the court refers to the main charge, in which we find that the appellant’s defensive theory, namely, that he purchased the liquor for beverage purposes, was submitted to the jury with an instruction to acquit, if they believed such to be the case, or had a reasonable doubt upon the subject. The court also charged the jury on circumstantial evidence. It is not believed that the bill reveals reversible error.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

It is insisted by appellant, that our opinion is not supported by Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Odenthal v. State (Tex. Cr. App.) 290 S. W. 745; and Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 763, but that it is diametrically opposed to the announcements made in said cases. We thought, at the time the original opinion was delivered, that the facts of this case brought it squarely within the principle announced in those just mentioned. However, in view of appellant’s motion, we have again reviewed all the evidence, and are further convinced that we made no mistake in" our original opinion.

As we understand the testimony, it shows that appellant was a white man. Stuart was a negro, at whose house a negro dance was in progress. Appellant was seen by the officers to drive in an automobile to a point in front of and near Stuart’s house. When the officers approached, a number of negroes were around appellant’s car. As the officers came up, the negroes left the car and went towards the house. Appellant, who was in his car under the steering wheel, started the engine as the officers approached. McDonald, one of the officers, testified:

“As I approached the car, the defendant started the motor, and I went up to the side of the car and spoke to him, and says, ‘Hello, Rochelle, what is the excitement out here?’ I don’t think he said anything right then. I then looked back between the front and back seat, and there was a fruit jar carton back there with some jars inside of it; there were three quart jars full of corn liquor, and one fruit jar about a fpurth full, and a soda pop bottle that had the odor of liquor in it, and two empty quart fruit jars with the odor of liquor in them. The defendant was. the only one in the car; he was sitting under the steering wheel in the car.”

Upon being recalled and questioned about the conversation which occurred at the car, the witness further says:

“That was not the starting of the conversation; that was after I had spoken to him, and saw this whisky in the back of the car and found out what’ it was. I had spoke to him and asked him what the excitement was, and he said nothing, and it was perhaps two or three minutes from then until I had the conversation at the car. I went up there to the car and spoke to Rochelle and asked him what the excitement was, and he said ‘Nothing’ — I mean that he meant there was no excitement — he said the word ‘nothing,’ and then I looked behind the seats and saw the liquor, and examined it, and that is when he made the statement to me, and that was two or three minutes after, something like that, the length of time was separated in that way.”

.Neeley, another officer, testified:

“When we got up there I saw Mr. Rochelle sitting there in his car with the engine running, and when we got to the car there were several negroes around this car. I looked in the car — we could see in the car from where we were — we saw a carton with some fruit jars in it; there were three quart fruit jars full of whisky, and one quart about a quarter full, and two 'empty jars with the odor of whisky, and a soda water bottle with the odor of whis-ky. This carton was just an empty box that has got this corrugated pasteboard in between, just a regular box that they come in, and it looked new, just had the top throwed back.”

In appellant’s motion, the qualification placed upop a bill of exception by the trial court to the effect that the whisky was in plain view of the officers, and that no search was necessary to find it, is very severely criticized as being a most remarkable qualification not authorized by the evidence, and an invasion of the province of the jury. We would observe that appellant was not required under the law to accept the bill as thus qualified, but might have refused such acceptance, or have had the court note, over his signature, an objection to such qualification. He did neither, but accepted the bill as thus explained. The court by such explanation could add nothing to the testimony. As the presiding judge, he was called upon to determine the admissibility of the evidence, in the absence of a search warrant, and the explanation is helpful to this court as indicating what impression had been made upon the trial judge by the evidence detailed before him. The officers violated no provision of the state or federal Constitution nor of the statutes when they approached appellant’s car and inquired what “was the excitement,” nor when they observed in his ear the fruit jar carton with jars in it. Truly the contents of the jars could not be definitely known until an examination of them revealed it, but the question to be determined is, Were the facts and circumstances known to the officers and observed by them antecedent to a search or examination of the contents of the jars sufficiently strong in themselves to warrant a cautious man in the belief that the contents of the automobile offended against the law? If so, “probable cause” existed to authorize the subsequent examination or search, and the receipt in evidence of the result thereof was not inhibited.

We are confirmed in our opinion that the circumstances under which the officers observed appellant’s car, and the facts which appear plainly from the evidence that without any search or violation of any of appellant’s legal or constitutional rights they could see in the car between the seats the carton with the fruit jars in it, presented a case of “probable cause,” authorizing the officers without a warrant to examine the contents of the car, and that the court committed no error in permitting them to detail before the jury what they discovered as a result of such search.

Appellant’s motion for rehearing is overruled. 
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