The County Attorney of San Saba County has filed in behalf of the State a motion for rehearing in which he takes the position that there was no search of appellant's car, relying for support of his proposition upon Garner v. State,109 S.W.2d 182.
We think the testimony of the officers makes the position untenable. The sheriff testified, "It was the defendant, Sellman Moss' car that we searched. It was not a permissive search * * * I did not ask for a search warrant, but searchedthe car without a warrant of any kind." The deputy sheriff testified: "It was the defendant, Sellman Moss' car that wesearched. It was not a permissive search. * * * He did not give us permission to search the car, and we did not have any warrant for his arrest."
The transaction occurred on the 11th day of August, 1937. Subdivision 30 of Art. 666, Vernon's Tex. P. C., Vol. 1, the present "Texas Liquor Control Act" would authorize the acts of the officers without a seizure warrant or a warrant of arrest, but the present law did not become effective until the 1st day of September, 1937, which was twenty days after the instant transaction occurred. *Page 38
For the reasons given the State's motion for rehearing is overruled.