Offense, the unlawful possession of intoxicating liquor for the purpose of sale; penalty, one year in the penitentiary.
Appellant's automobile was searched by the Sheriff of Runnels County and a half gallon of whisky found therein. Prior to the search it was shown that the Sheriff had been informed in the absence of appellant by one of his deputies that he had heard the appellant say in a conversation with Ray Parker that he had three gallons of whisky out on the Crews road, that he had followed appellant out on the Crews road and back and down to a flour mill where he saw appellant deliver to one Freeman something in a tow sack, had followed and arrested Freeman and found a half gallon of whisky in a tow sack in Freeman's car. That upon receipt of this information from said deputy, the Sheriff searched appellant's car without a search warrant with the result above stated.
Objection was made to the reception in evidence of the result of the search of appellant's car because no probable cause was shown to exist and same was made without a search warrant and not upon personal knowledge of the officer that an offense was being committed, but upon hearsay statements and to the reception in evidence of the deputy's statement to the Sheriff because same was hearsay in appellant's absence.
That an automobile may be searched without a search warrant where "probable cause" exists is well settled. Battle v. State,290 S.W. 762. *Page 252
It was said in Carroll v. U.S., 267 U.S. 132, 69 L. Ed. 543:
"The right to search and the validity of the seizure are not dependent upon the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law."
And "if it should become an issue whether the facts existed which are claimed to constitute 'probable cause,' it would be proper to submit the issue to the jury." McPherson v. State,300 S.W. 937. See also Broyles v. State, No. 11191, not yet officially reported.
In this case appellant denied in most part the conversation with Parker attributed to him by the deputy sheriff. An issue was made by this and other testimony for appellant of the existence of facts claimed to show probable cause. The appellant objected to the admission of the result of the search of appellant's car. Apparently appellant did not admit but denied the existence of facts showing probable cause and was, we think, under the facts of this record, entitled to have such issue submitted to the jury. This issue being present, it logically follows that the hearsay statements objected to were admissible as tending to prove probable cause as same has been defined in the Battle case, supra. They illustrated upon what the Sheriff acted in making the search. If a fact question is not presented, it is clearly the duty of the trial judge to decide such preliminary question himself and in such case to keep from before the jury hearsay statements of a prejudicial character which are admissible only as evidence to go to the jury when the issue of the existence of probable cause is present.
The submission to the jury of an issue as to the existence of a fact, necessary to be affirmatively determined before certain evidence is admissible is a practice which we do not commend, and which was vigorously condemned in Bingham v. State,262 S.W. 747, by Judge Hawkins, speaking for this Court. It may prove provocative of much mischief, but seems unavoidable in some cases.
Under other facts the action of the Court in this case might be erroneous, but under the record presented, we are of the opinion that no error is shown.
We have carefully examined all of appellant's bills of exception and believing no error appears in any of them, the judgment is affirmed.
Affirmed. *Page 253
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.