The conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.
A summary of the facts proved is as follows: Allen, the sheriff, having two Mexicans in his custody and while traveling upon the public road, met an automobile driven by the appellant Tendia. The sheriff was not acquainted with the appellant, but the latter was acquainted with one of the Mexicans who was in the sheriff's car. As he approached he waved his hand indicating that he desired that the car driven by the sheriff be stopped. It was stopped and the appellant got out of his car, walked to that occupied by the sheriff, and the Mexicans engaged in a conversation with each other. It appears that the appellant was a stranger in the country and did not know the sheriff. At least, this is the inference drawn from the evidence. Without disclosing his identity as an officer, the sheriff, while the appellant was conversing with one of the occupants of the sheriff's car, got out and walked to the car of the appellant which was standing on the road. He observed a grass sack on the floor of the car between the front and back seats. Observing that the grass sack contained something, the sheriff reached his hand into the car, raised the sack and observed a five-gallon jug which was laying on its side. He straightened the jug up and removed the stopper and found that it contained whisky. In making his observation he removed nothing. The sack was observable from his position in the road. At some time during the transaction, the sheriff asked the appellant what he had, and the appellant said it was water. According to the sheriff's best recollection, this occurred at the time he straightened the jug up.
Objection to the officer's testimony was made upon the ground that he was not possessed of a search warrant, and that the information which he conveyed to the jury was acquired in violation of the statutes of this state; also the Constitution of this state and the United States. Appellant refers to Art. 1, Sec. 9 of the Bill of Rights forbidding unreasonable searches and seizures "without probable cause" supported by oath or affirmation;" also Art. 4a, C. C. P., 1925, forbidding search without a warrant, and Art. 727a, C. C. P. 1925, which reads as follows:
"No evidence obtained by an officer or other person in violation of any provision of the constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on trial of any criminal case." *Page 629
Under the law of this state, we have held in the case of Odenthal v. State, 290 S.W. R. 743, and Battle v. State, 290 S.W. R. 762, and now re-assert, that neither the Constitution of the State nor the statutes mentioned are violated in the search of an automobile upon the public road which is engaged in the transportation of intoxicating liquor when the officer making the search has probable cause therefor. By "probable cause" is meant:
"A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." (Landa v. Obert, 45 Texas Report, 539.)
Another definition is: "If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that an offense has been committed, it is sufficient." See Carroll v. United States, 69 Law Ed. 543,267 U.S. 132.
It is believed that the facts developed in the present instance are sufficient to meet the measure of the law touching probable cause. In other words, that the circumstances in the possession of the sheriff were sufficiently strong in themselves to warrant a cautious man in the belief that the appellant was transporting intoxicating liquor in this automobile.
Because the evidence is deemed sufficient to warrant the search by virtue of the authorities mentioned, and the facts disclosed are sufficient to support the conviction, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING. Admitting as correct the construction of the Constitution of the United States and of this State relating to searches of automobiles upon "probable cause" without search warrant as announced in Carroll v. U.S., 69 L. Ed. 543, 267 U.S. 132; Odenthal v. State, 290 S.W. 743, and Battle v. State,290 S.W. 762, appellant earnestly insists that in applying the principle to the facts of this case we were in error. His analysis of the facts in the motion for rehearing has challenged our attention.
In the cases cited it is clear that the Supreme Court of the U.S. and this court are committed to the sound proposition that a search unlawful in its incipiency is not made lawful by the fact that contraband goods are found, but that the facts and circumstances known to the officers in advance of the search must be such as to warrant a man of prudence and caution to believe the vehicle search contained *Page 630 goods denounced as contraband. There is stated in the original opinion enough of the testimony to show that the sheriff met appellant on the public highway, that appellant being acquainted with the Mexicans in the sheriff's car waved to them to stop and both cars did stop within ten or fifteen feet of each other and appellant got out of the car in which were his wife and children, approached the sheriff's car and engaged in conversation with the Mexicans in it. The record nowhere reflects that anything was said in this conversation which could have impressed the officer with the belief that appellant had whisky in his car or that anything in appellant's manner suggested it. Appellant and the officer were strangers to each other. The latter had no knowledge or information from any source even remotely intimating that appellant had been theretofore or was then connected with intoxicating liquor; neither does the record intimate that prior to the search the officer knew or suspected appellant was violating in the officer's presence any law which would justify an arrest. Up to this time everything was regular, apparently nothing more than citizens meeting on the highway, one waving to the other and both stopping for a conversation. At this point the sheriff left his car and stepped over to that of appellant upon the back seat of where were appellant's wife and children. The officer glanced in the car and observed on the floor at the feet of appellant's wife a grass or "tow" sack. The officer had not touched appellant's car or anything in it and we fail to see up to this time any invasion of appellant's constitutional or legal rights. To our minds here must be the turning point in this case. The officer does not testify that the sack had an peculiar shape or outward appearance indicating that a container of intoxicating liquor might be beneath or in it. If so the facts might bring the case within the principle announced in Rochelle v. State, 107 Tex.Crim. R.,294 S.W. 860, where the officers observed in accused's automobile an open fruit jar container with jars in it, wherein we held that such fact furnished "probable cause" which authorized a search. Upon observing the sack in appellant's car the officer reached in the car, removed the sack and found in or under it a jug containing intoxicating liquor. If this conviction is to stand it must be because as a result of the search intoxicating liquor was found, although no facts were stated by the officer upon the trial which showed any antecedent information or knowledge of facts or circumstances which furnished "probable cause" to authorize it. The searching act of an officer should be legal regardless of the result of the search. If upon removal of *Page 631 the sack in question it had been found to contain plow points, harness, or any one of a thousand innocent articles, and the officer had been prosecuted under the provisions of Art. 4A, C. C. P., it would have been difficult to defend in the absence of proof that the appearance and shape of the sack was such that it led the officer as a prudent man to believe it concealed articles which offended against the law. If he had made the search having "probable cause" to do so, his act would not be subject to criticism whatever the search revealed. Many illustrative cases from other jurisdictions will be found on pages 183 to 187 Cornelius on Search Seizure.
Appellant appears to be only an humble citizen of the state, but he is entitled to the protection of the law in the preservation of his constitutional rights from invasion. From what has been said it follows that we have concluded that the motion for rehearing should be granted, the affirmance set aside, and the judgment be now reversed and the cause remanded.
Reversed and remanded.
DISSENTING OPINION.