MORROW, Presiding Judge. —
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 com whiskey, one fruit jar about half full, a “soda-water bottle with the odor of whiskey and two empty fruit jars with the odor of whiskey in them.” This was at night at about eleven o’clock. Peace officers testified that they left Texarkana about nine 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 thirty 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 not know; that he paid seven dollars for it.
Appellant testified in his own behalf and introduced the tes
timony 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 whiskey 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 whiskey 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 w'as inhibited by Art. 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 to the search were sufficient to show “probable cause” within the meaning of the Constitution and the statutes (Art. 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 whiskey 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 w’as 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 case within the rule stated in Battle v. State, 290 S. W. 763; Odenthal v. State, 290 S. W. 745; Carroll v. United States, 267 U. S. 132. It also comes within the purview of the law which authorizes a search contemporaneous with a lawful arrest. See Arts. 212, 213, C. C. P., 1925; also Hodges v. State, 6 Tex. Crim. App. 620, and other cases collated in Branch’s Ann. Tex. P. C., Sec. 1979; Crippin v. State, 80 Tex. Crim. Rep. 293; Carroll v. United States, supra; Agnello v. United States, 269 U. S. 20, 70 L. Ed. 145, and other cases collated in Moore v. State (No. 10247), not yet 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 statément 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, Arkansas, for the manufacture of a still. It appears that this testimony w'as 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 Markham 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 whiskey. 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 felonies. See U. S. Compiled Statutes, 1923 Cumulative Supplement, under the head of National Prohibition, p. 689, Arts. 10138% et seq.
The matter was before this court in Ferguson’s case, 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 case, 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 whiskey from a negro for seven dollars.
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MORROW, Presiding Judge. —
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 com whiskey, one fruit jar about half full, a “soda-water bottle with the odor of whiskey and two empty fruit jars with the odor of whiskey in them.” This was at night at about eleven o’clock. Peace officers testified that they left Texarkana about nine 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 thirty 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 not know; that he paid seven dollars for it.
Appellant testified in his own behalf and introduced the tes
timony 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 whiskey 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 whiskey 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 w'as inhibited by Art. 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 to the search were sufficient to show “probable cause” within the meaning of the Constitution and the statutes (Art. 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 whiskey 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 w’as 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 case within the rule stated in Battle v. State, 290 S. W. 763; Odenthal v. State, 290 S. W. 745; Carroll v. United States, 267 U. S. 132. It also comes within the purview of the law which authorizes a search contemporaneous with a lawful arrest. See Arts. 212, 213, C. C. P., 1925; also Hodges v. State, 6 Tex. Crim. App. 620, and other cases collated in Branch’s Ann. Tex. P. C., Sec. 1979; Crippin v. State, 80 Tex. Crim. Rep. 293; Carroll v. United States, supra; Agnello v. United States, 269 U. S. 20, 70 L. Ed. 145, and other cases collated in Moore v. State (No. 10247), not yet 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 statément 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, Arkansas, for the manufacture of a still. It appears that this testimony w'as 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 Markham 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 whiskey. 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 felonies. See U. S. Compiled Statutes, 1923 Cumulative Supplement, under the head of National Prohibition, p. 689, Arts. 10138% et seq.
The matter was before this court in Ferguson’s case, 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 case, 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 whiskey from a negro for seven dollars. Against this testimony objection was urged that it was violative of the confession statute 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. Art. 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 whiskey 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.
Affirmed.