The appellant was convicted of unlawfully transporting intoxicating liquor, and his punishment assessed at two years in the penitentiary.
The record discloses that Deputy Sheriff J. M. Foote, while at the office of the constable in the city of Port Arthur, called the place of business run by one Jack Cooper over the telephone and ordered two quarts of whiskey to be sent to room 223 of the Plaza Hotel; and that the man who answered the telephone stated that he "would bring it right up." Foote and another deputy by the name of Alsup immediately rushed to the hotel, Alsup going to the front entrance and Foote to the rear entrance. Within a few minutes thereafter the appellant came through the rear entrance of said hotel and was immediately arrested and searched by Foote, and two quarts of Scotch whiskey were found on his person. The appellant testified, and introduced other testimony to the effect, that he did not know the nature of the packages found upon his person at the time of his arrest, but that they had been delivered to him, wrapped in paper, by one *Page 418 Earl Erwin, who promised to give him a dollar if he would deliver them to a Mr. Sterling, who was sick in room 223 of the Plaza Hotel.
We find in the record a complaint to the refusal of the court to sustain appellant's motion to suppress the testimony of the state because the officer Foote did not have a search warrant at the time of the arrest and search of the appellant. This court has held many times that such a motion is not in accord with the procedure in this state, but that the proper practice is to object to such evidence when offered, if same is objectionable to the accused. Foster v. State, 282 S.W. 600.
The transcript proper contains two bills of exception. Bill No. 1 complains of the refusal of the court to submit to the jury appellant's special charge to the effect that if the whiskey was transported for medicinal purposes, to acquit the appellant. There is no objection to the court's charge in the record, and this special charge requested was not applicable to the issues raised by the testimony. The bill, as presented, shows no error.
Bill No. 2 complains of the refusal of the court to sustain appellant's motion to strike out all the evidence introduced by the state and instruct a verdict of not guilty because the officer had no warrant for appellant's arrest and no search warrant authorizing a search of appellant's person, which, it is contended, made said search in violation of the constitution of this state. In view of the fact that the evidence shows that the arresting officer knew appellant well, and knew that he frequented the place from which the whiskey was ordered, and had been informed over the telephone that the whiskey would be brought to the hotel immediately, we are of the opinion that the officer had probable cause and sufficient reason to believe that the appellant was committing a felony in his presence and was authorized to arrest and search appellant without a warrant, under the doctrine announced by this court in Odenthal v. State, 290 S.W. 743; Battle v. State, 290 S.W. 762; Whitworth v. State, 290 S.W. 764.
Finding no error in the record, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.
Affirmed.
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. *Page 419