
    DEAVER v. STATE.
    (No. 9983.)
    (Court of Criminal Appeals of Texas.
    March 24, 1926.)
    1. Intoxicating liquors <&wkey;236(20>).
    Testimony of state’s witness field to warrant conviction of transporting liquor.
    2. Criminal law <@=»395 — Intoxicating liquors &wkey;>249 — Statutes forbidding search without warrant, and use' of information obtained as evidence against accused, held inapplicable, where officer took whisky from toilet after seeing accused put it there (Acts 39th Leg. [1925] cc. 49, 149; Code Cr. Proc. 1925, arts. 4a, 4b; Pen. Code 1925, art. 690).
    Officer, who saw accused drive automobile into alley and leave box containing whisky in toilet that did not belong to him and was not in his possession, could arrest him under Pen. Code 1925, art. 690, and his testimony as to seizure of whisky was not inadmissible under Acts 39th Leg. [1925] cc. 49, 149, or Code Cr. Proc. 1925, arts. 4a, 4b, on ground that whisky and information on which found were obtained by search without warrant,
    Appeal from District Court, Hood County; J. B. Keith, Judge.
    J. E. Deaver was convicted of unlawful transportation of intoxicating liquor, and he appeals.-
    Affirmed.
    M. L. Arrington, of Granbury, for appellant. '
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

According to the state’s testimony, appellant drove his automobile into an alley, got out of the ear, leaving the engine running. He placed a box containing a jar of whisky in a toilet. An officer who observed the transaction went to the toilet and took possession of the whisky.

Appellant testified, and denied having the whisky in question or placing it in the toilet. He also offered some supporting testimony.

On the testimony, the jury might have decided the ease in favor of the appellant, but it cannot be justly said that they were not authorized to believe the state’s witness.

The receipt of the testimony of the state’s witness Thorp is made the subject of complaint, upon the ground that the jar of whisky and the information upon which it was found were obtained without a search warrant, and was inhibited by the acts of the Legislature prohibiting a search without a warrant, and forbidding the use of information acquired by such search as evidence against the accused. It does not seem to the writer that the present case comes within the purview of the statutes mentioned. See chapters 49 and 149, Acts of 39th Leg. Reg. Sess.; also articles 4a and 4b, O. C. P. 1925; article 690, P. 0. 1925. The offense, if any, was committed in the presence of the officer under conditions warranting the arrest of the appellant under article 690, P. O. 1925. No search was made, as the officer claims to have seen the appellant place the whisky in the toilet. The closet did not belong to the appellant, nor was it in his possession. It is not believed that any of the statutes or constitutional provisions forbidding unlawful searches and seizures covered the transaction in question.

We have examined the other bills of exception contained in the record, and find no error committed by the court in the trial of the ease.

The judgment is affirmed.  