MORROW, Presiding Judge.
The offense is unlawfully transporting intoxicating liquor; penalty, confinement in the penitentiary for a period of two years and six months.
The appellant was arrested by Hickman, the chief of police of the city of Colorado. Hickman’s testimony is in substance as follows: He saw the appellant about eleven o’clock at night. The appellant was driving an automobile and had three other men with him in the car. Delaney, another officer, said to Hickman: “Look at that car. It is loaded.” It Was parked on the street. The appellant started the car and drove off. He was followed by Hickman and Delaney. From Hickman’s testimony we take the following: “After he turned down the street we walked across the street and got in my car. * * * We took after him and headed him off this side of Lonewolf Bridge. * * * We jumped out and Jack started to stop him, and he began to back up like he was going to try and get away. * * * We asked him where he lived * * * and who had the key to the car. He said he lived in Sweet-
water and that the car belonged to a man in Sweetwater. Jack walked around to the back and raised it up. * * * I never did see in the back at all. Jack was just standing there and nodded his head, and I said, ‘How much have you got, pardner’, and he said, 'Thirty gallons of red rye whisky’.”
Appellant said that the boys with him had no interest in the matter; that he picked them up at Big Springs. He said: “I am the man.” Appellant and the men were all arrested by Hickman and Delaney. After-putting the appellant in jail, his car was searched and a number of jars containing whisky were found in the back of the car. The containers were introduced in evidence.
Appellant introduced no testimony but contends that the court erred in admitting in evidence the statement detailed above. The grounds of objection are as follows: “For the reason that the defendant was under arrest prior to the search, being detained and stopped by Mr. Hickman and Mr. Delaney, who have testified that they were officers, and further because they had no search warrant to search the said car; nor does the testimony given by both witnesses constitute probable cause, whereby said Hickman and Delaney were justified in searching said car, and the defendant therefore respectfully asks the Court to determine that probable cause did not exist for the search, as has been testified to here, and therefore said search is contrary to article 1, section 9, of the Constitution of Texas, as well as any and all other laws regarding the searching without a search warrant of the State of Texas and the United States.”
The opinion is expressed that the presence of intoxicating liquor in the possession of the appellant was learned through a search of his automobile without “probable cause” as that term has been defined. The subesquent admission by the appellant that he possessed intoxicating liquor in the car added nothing material to the knowledge of the officer who,, without a search warrant and without probable cause, had lifted up the back of the car in which the appellant was riding and discovered the presence of whisky. At the time the appellant’s car was stopped by the officers they were guided by nothing more than bare suspicion. One of them said, “It is loaded.” It had four men in it and it was evidently loaded to that extent. On the subject of stopping an automobile upon the public highway and searching it without probable cause, Chief Justice Taft of the Supreme Court of the United States, in the case of Carroll v. United States, 257 U. S., 132, 69 L. Ed., 543, said:
“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. * * * Those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent
official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.
“The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.
“We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction.” Odenthal v. State, 106 Texas Crim. Rep., 1, 290 S. W., 746.
It is true that the officer who raised the back of the automobile and "discovered the presence of liquor was not the one used by the state as a witness. The two were acting together in stopping the automobile and searching it. After the appellant’s car had been obstructed so that it could not proceed, one of the officers engaged in a conversation with him while the other searched his car. The officer who made the search nodded to the one in front. The one in front then asked the appellant how much whisky he had, to which he replied that he had thirty gallons. Numerous cases in point will be found in the textbooks and decisions in which the courts of this and other states have, under similar facts, held that the stopping of an automobile upon the highway and searching it is illegal. Those cases cited by our own courts are the following: Deavers v. State, 111 Texas Crim. Rep., 325, 13 S. W. (2d) 86; Hardiway v. State, 108 Texas Crim. Rep., 659, 2 S. W. (2d) 455; Mims v. State, 108 Texas Crim. Rep., 313, 1 S. W. (2d) 303; Talley v. State, 24 S. W. (2d) 38; Odenthal v. State, 106 Texas Crim. Rep., 1, 290 S. W., 743; Gunter v. State, 109 Texas Crim. Rep., 408, 4 S. W. (2d) 978. Many recent cases are collated in Cornelius on Search & Seizure, 2nd Ed., sec. 64, beginning at page 200. The evidence introduced against the appellant was the result of an unauthorized search and is therefore inadmissible under article 727a, C. C. P., 1925, which reads as follows: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”
The facts in the present case distinguish it from that of Carter v. State, 113 Texas Crim. Rep., 433, 22 S. W. (2d) 659, and Young v. State, 115 Texas Crim. Rep., 560, 27 S. W. (2d) 801. In Carter’s case, an officer entered the appellant’s automobile and was a trespasser. Carter would have had the right to have ousted the officer from the car. Instead of doing so, however, he voluntarily told the officer that he had whisky in the car.
Acting upon that information the officer searched the car and found whisky.
The officer’s testimony thus obtained was held not violative of article 727a, C. C. P., 1925, but was admissible upon the ground that the liquor was found as a result of the voluntary declaration of the
accused and therefore admissible under the terms of article 727, C. C. P. In its opinion, the court said: “The declaration of the appellant that he had the whisky in his car was one that he was not forced to make by any of the circumstances proved.
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MORROW, Presiding Judge.
The offense is unlawfully transporting intoxicating liquor; penalty, confinement in the penitentiary for a period of two years and six months.
The appellant was arrested by Hickman, the chief of police of the city of Colorado. Hickman’s testimony is in substance as follows: He saw the appellant about eleven o’clock at night. The appellant was driving an automobile and had three other men with him in the car. Delaney, another officer, said to Hickman: “Look at that car. It is loaded.” It Was parked on the street. The appellant started the car and drove off. He was followed by Hickman and Delaney. From Hickman’s testimony we take the following: “After he turned down the street we walked across the street and got in my car. * * * We took after him and headed him off this side of Lonewolf Bridge. * * * We jumped out and Jack started to stop him, and he began to back up like he was going to try and get away. * * * We asked him where he lived * * * and who had the key to the car. He said he lived in Sweet-
water and that the car belonged to a man in Sweetwater. Jack walked around to the back and raised it up. * * * I never did see in the back at all. Jack was just standing there and nodded his head, and I said, ‘How much have you got, pardner’, and he said, 'Thirty gallons of red rye whisky’.”
Appellant said that the boys with him had no interest in the matter; that he picked them up at Big Springs. He said: “I am the man.” Appellant and the men were all arrested by Hickman and Delaney. After-putting the appellant in jail, his car was searched and a number of jars containing whisky were found in the back of the car. The containers were introduced in evidence.
Appellant introduced no testimony but contends that the court erred in admitting in evidence the statement detailed above. The grounds of objection are as follows: “For the reason that the defendant was under arrest prior to the search, being detained and stopped by Mr. Hickman and Mr. Delaney, who have testified that they were officers, and further because they had no search warrant to search the said car; nor does the testimony given by both witnesses constitute probable cause, whereby said Hickman and Delaney were justified in searching said car, and the defendant therefore respectfully asks the Court to determine that probable cause did not exist for the search, as has been testified to here, and therefore said search is contrary to article 1, section 9, of the Constitution of Texas, as well as any and all other laws regarding the searching without a search warrant of the State of Texas and the United States.”
The opinion is expressed that the presence of intoxicating liquor in the possession of the appellant was learned through a search of his automobile without “probable cause” as that term has been defined. The subesquent admission by the appellant that he possessed intoxicating liquor in the car added nothing material to the knowledge of the officer who,, without a search warrant and without probable cause, had lifted up the back of the car in which the appellant was riding and discovered the presence of whisky. At the time the appellant’s car was stopped by the officers they were guided by nothing more than bare suspicion. One of them said, “It is loaded.” It had four men in it and it was evidently loaded to that extent. On the subject of stopping an automobile upon the public highway and searching it without probable cause, Chief Justice Taft of the Supreme Court of the United States, in the case of Carroll v. United States, 257 U. S., 132, 69 L. Ed., 543, said:
“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. * * * Those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent
official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.
“The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.
“We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction.” Odenthal v. State, 106 Texas Crim. Rep., 1, 290 S. W., 746.
It is true that the officer who raised the back of the automobile and "discovered the presence of liquor was not the one used by the state as a witness. The two were acting together in stopping the automobile and searching it. After the appellant’s car had been obstructed so that it could not proceed, one of the officers engaged in a conversation with him while the other searched his car. The officer who made the search nodded to the one in front. The one in front then asked the appellant how much whisky he had, to which he replied that he had thirty gallons. Numerous cases in point will be found in the textbooks and decisions in which the courts of this and other states have, under similar facts, held that the stopping of an automobile upon the highway and searching it is illegal. Those cases cited by our own courts are the following: Deavers v. State, 111 Texas Crim. Rep., 325, 13 S. W. (2d) 86; Hardiway v. State, 108 Texas Crim. Rep., 659, 2 S. W. (2d) 455; Mims v. State, 108 Texas Crim. Rep., 313, 1 S. W. (2d) 303; Talley v. State, 24 S. W. (2d) 38; Odenthal v. State, 106 Texas Crim. Rep., 1, 290 S. W., 743; Gunter v. State, 109 Texas Crim. Rep., 408, 4 S. W. (2d) 978. Many recent cases are collated in Cornelius on Search & Seizure, 2nd Ed., sec. 64, beginning at page 200. The evidence introduced against the appellant was the result of an unauthorized search and is therefore inadmissible under article 727a, C. C. P., 1925, which reads as follows: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”
The facts in the present case distinguish it from that of Carter v. State, 113 Texas Crim. Rep., 433, 22 S. W. (2d) 659, and Young v. State, 115 Texas Crim. Rep., 560, 27 S. W. (2d) 801. In Carter’s case, an officer entered the appellant’s automobile and was a trespasser. Carter would have had the right to have ousted the officer from the car. Instead of doing so, however, he voluntarily told the officer that he had whisky in the car.
Acting upon that information the officer searched the car and found whisky.
The officer’s testimony thus obtained was held not violative of article 727a, C. C. P., 1925, but was admissible upon the ground that the liquor was found as a result of the voluntary declaration of the
accused and therefore admissible under the terms of article 727, C. C. P. In its opinion, the court said: “The declaration of the appellant that he had the whisky in his car was one that he was not forced to make by any of the circumstances proved. * * * Instead, however, he made to the officer a declaration that there was whisky in his car, which statement was found to be true, and proof thereof was authorized,” under the statute mentioned.
In Young’s case, supra, an officer, in the capacity of a trespasser,, stepped upon the running-board of the appellant’s car. The officer discovered nothing in the car. Appellant got out of the car, however, and after walking some distance threw some bottles into a ditch. This was observed by the officer, who went to the ditch and got the bottles which contained whisky. His testimony was held admissible for the reason that it was not the result of the trespass, and he had not put the accused under arrest at the time. In each of the cases mentioned above the discovery of the liquor was the result of the acts or declarations of the accused and was not the result of the illegal search. The same may be said of the case of Owens v. State, 112 Texas Crim. Rep., 1, in which after a collision between the appellant’s car and that of the officers, the appellant got out of his car and carried the whisky on his person. After he got out of the car he dropped a bottle of whisky in the presence of the officers. Observing this, the officers acted upon probable cause for searching the car in which they found a quart of whisky.
The case of Swanson v. State, 113 Texas Crim. Rep., 104, 18 S. W. (2d) 1082, is somewhat analogous to that under consideration. It is-conceived that the principle applicable is analogous to that which has been applied to the operation of article 727, C. C. P. In that article the confession of one accused of crime is excluded unless the confession complies with the law requiring that it be voluntarily made and reduced to writing under certain formalities. If the confession is not so made but is obtained by force of persuasion, it is not available to the state. There is an exception, however, embraced in the statute whereby the confession of one accused of crime, though obtained by threats, persuasion or other illegal means, is nevertheless admissible against him if the confession results in the finding of the fruits of the crime or instruments, used in its commission. The same principle is conceived to apply to any illegal search. If an illegal search is made and coincident with it the accused makes a declaration which leads to the finding of the contraband article, proof of the finding of the contraband upon information-obtained by the declaration of the accused becomes admissible, but where, as in the present case, the search was illegal and the liquor was observed' as a result of the search before the declaration was made, the finding of the liquor must be attributed to the illegal search and not to the subsequent declaration. Other cases somewhat in point are Pena v. State, 111
Texas Crim. Rep., 218, 12 S. W. (2d) 1015; Elms v. State, 26 S. W. (2d) 211; Law v. State, 115 Texas Crim. Rep., 47, 27 S. W. (2d) 174; Mireless v. State, 23 S. W. (2d) 727.
The judgment is reversed and the cause remanded.
Reversed and remanded.