
    HARDIWAY v. STATE.
    (No. 11327.)
    Court of Criminal Appeals of Texas.
    Jan. 25, 1928.
    Rehearing Denied Feb. 15, 1928.
    1. Intoxicating liquors <&wkey;249 — Officer who, in pursuing motorist driving with only one light, observed fruit jars in his car, had probable cause to search car without warrant (Pen. Code 1925, arts. 798, 803).
    Where defendant was driving car with only one light burning in violation of Pen. Code 1925, art. 798, and refused to stop for officer, officer had right to search car which defendant abandoned, where, in undertaking to perform his duty in connection with headlight law, officer pursuing defendant observed fruit jars in back of his car, since circumstances furnished probable cause for search without warrant; article 803 giving right to arrest without warrant for violation of headlight law.
    2. Witnesses <&wkey;394, 395 — Defendant’s impeachment of state’s witness held to permit proof of witness’ general reputation for veracity and of statements consistent with testimony.
    Where defendant introduced testimony that state’s witness had made statements contradictory to his testimony at trial, it was permissible for state to prove that witness had good general reputation for truth and veracity and that shortly after transaction witness made statements consistent with his testimony.
    
      3. Criminal law <&wkey;938(3)—Testimony of witnesses that defendant was with them at time of alleged offense held not newly discovered evidence warranting new trial (Code Cr. Proc. 1925, art. 753).
    Affidavit, of nonresident -witnesses to effect that defendant was present in Oklahoma at time he was claimed by state to have been transporting liquor held not to warrant new trial on ground of newly discovered evidence under Code Or. Proc. 1925, art. 753, where witnesses claimed they were with defendant at time of alleged offense, inasmuch as under such circumstances their testimony was not newly discovered.
    Appeal from District Court, Lamar County ; George P. Blackburn, Judge.
    E. E. Hardiway was convicted of toyis-porting intoxicating liquor, and lie appeals.
    Affirmed.
    Grady Sturgeon and Chas. Roach, both of Paris, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor; punishment being one year in the penitentiary.

Chenault, a policeman in the city of Paris in Lamar county, was directing traffic on one of the streets and observed the car driven by appellant, which had only one light burning. The officer called his attention to the'light, and, appellant indicating no intention to stop, the officer tried to detain the car on account of the defective lights. Appellant drove by the officer, who, while attempting to stop the car, observed some fruit jars in the back of it. Appellant drove away. The officer got in another car and overtook appellant, who again refused to stop. When about to be overtaken for the second time, appellant and his wife abandoned the car and eluded the officers. The car was found to contain eleven fruit jars full of whisky and one partially full. There is no merit in appellant’s objection to Chenault’s evidence because he had no search warrant. None was needed under the facts of this case. Appellant was violating the motor vehicle “headlight” law in driving a car with only one light. Article 798, P. C. 1925. The officer had a right to arrest for such an offense without a warrant. Article 803, P. 0. 1925. While undertaking to perform his duty as an officer, he observed the fruit jars in the back of the car. This, together with appellant’s subsequent conduct, furnished probable cause for the search of the car without a warrant. Odenthal v. State, 106 Tex. Cr. R. 1, 290 S. W. 743; Washington v. State (Tex. Cr. App.) 296 S. W. 512; Rochelle v. State (Tex. Cr. App.) 294 S. W. 860; Plant v. State, 106 Tex. Cr. R. 330, 292 S. W. 550; Whitworth v. State, 105. Tex. Cr. R. 041, 290 S. W. 764; Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762.

Bills 2 and 3 question the ruling of the court in permitting proof by the state sustaining its witness Chenault. Appellant had introduced evidence that the witness had made statements contradictory of the testimony. given by him on the trial. Under such circumstances it was permissible for the state to prove his general' reputation for truth and veracity to be good (Dixon v. State, 15 Tex. App. 271) and also to prove that shortly - after the transaction the witness made statements consistent with the testimony given by him on the trial (Goode v. State, 32 Tex. Cr. R. 505, 24 S. W. 102). For collation of authorities on each point, see Branch’s Ann. Tex. P. C. §§ 181 and 184.

Appellant sought a new trial on the ground of newly discovered evidence and attached to his motion the affidavit of two witnesses who resided in Oklahoma to the effect that appellant was in Oklahoma at the time he was claimed by the state to have been transporting the liquor in question. The evidence of these witnesses is in no sense newly discovered. The indictment charged the offense to have been committed on or about October 1, 1925. The state confined it to October 1st The witnesses whose evidence is claimed to be newly discovered assert that they were with appellant in Hugo, Okl., at the very time the offense is claimed to have been committed. If appellant was with these witnesses he must have known it all the time. Appellant fails to bring himself within the well-known rules which must be complied with before a now trial will be awarded on the ground of newly discovered evidence. Article 753, C, O. P. 1925. See authorities collated under note 25, Vernon’s O. O. P. 1925, vol. 3, p. 13.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant files a brief motion without citation of any authorities or the discussion of any legal principle. He asserts that the verdict is in the face of the facts and in violation both of the law and the Constitution. We think the law is correctly intepreted by the authorities cited in the original opinion, and that the Constitution was in nowise violated.

The motion for rehearing is overruled. 
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