The record has been corrected so as to authorize the consideration of the statement of facts.
The state's witness, Albert Oakley, testified that on or about the 30th of November, 1932, he saw the appellant about seventeen miles from Burnet on the side of a public road. The appellant was sitting in his car. He was asleep at the time. The witness attempted to wake him up and smelled liquor on his breath. The witness remained with the appellant for about fifteen minutes. He did not reach in the car but looked in and noticed a blanket lying over a box on the back seat. He saw some pasteboard cases or cartons. The corner of one of the cartons was not covered up by the blanket. The witness left the car and communicated with the sheriff.
Barnett, the sheriff of Burnet County, testified that on the 30th of November, 1932, he received information over the telephone that a car was located about seventeen miles on the Lampasas road; that upon going to the car he saw the appellant sitting in it. Appellant appeared to be asleep, but the witness was of the opinion that he was not asleep. The sheriff smelled liquor on the appellant's breath. Upon looking into the car, the sheriff saw a fruit jar container or case, a part of which was covered *Page 182 up with a blanket. A further examination revealed the presence of sixty-eight gallons of whisky in the car. The sheriff then arrested the appellant. On cross-examination the sheriff testified that before he opened the door of the appellant's car, he could not tell what was in the carton; that after he opened the door of the car on the side where the appellant was sitting, he could smell the odor of whisky upon his breath. It was not until he opened the door of the appellant's car that the sheriff saw the cases which contained the whisky.
The defense is based upon the claim that the evidence that the appellant possessed intoxicating liquor was obtained through an illegal search, referring to section 9, article 1, Const. of Texas, forbidding an unreasonable search and seizure, and to article 727a, C. C. P., 1925, inhibiting the introduction of evidence acquired through an illegal search. The books are replete with decisions construing section 9, article 1, supra, and article 727a, supra, giving effect to them in favor of the accused under appropriate facts. See Carroll v. United States, 267 U.S. 132, 69 L.Ed., 543, 39 A. L. R., 790; Chapin v. State, 296 S.W. 1095; Tendia v. State, 111 Tex.Crim. Rep., 13 S.W.2d 849; Nelson v. State,14 S.W.2d 847; Williams v. State, 40 S.W.2d 142; Talley v. State, 24 S.W.2d 38. Appellant stresses his contention that the facts in the present record are not distinguishable from those reviewed in the cases of Tendia v. State, supra, and Talley v. State, supra. It is said in the cases of Carroll v. United States, supra, and Tendia v. State, supra, that the right to search an automobile without a warrant turns upon whether the facts and circumstances before the officer making the search are such as would warrant a man of prudence and caution in believing that the accused was committing an offense. In the present instance, before making the search, the sheriff was informed that a man who had parked his car upon the public highway was sleep; that he was intoxicated, and that about him and his car there was the odor of intoxicating liquor. There were some cartons in his car, one of which was exposed to view without entering the car. Acting upon such information, the sheriff went to a point about seventeen miles distant, where the appellant was found still in his car, either asleep or feigning asleep. About his car and upon the appellant's breath was the odor of intoxicants. In the carton in the car partly exposed was some intoxicating liquor, and under the blanket were sixty-eight gallons of whisky. It is thought that the facts differentiate the present case from that of Tendia v. State, supra, and also from those developed in the case of Talley v. State, supra. In each of the cases mentioned *Page 183 there was a jug observed by the officer who made the search. Aside from that fact there was developed in neither case any fact or circumstance which formed a reasonable ground of suspicion sufficiently strong to warrant a cautious man to believe that the accused was committing the offense of which he is charged.
The motion for rehearing is overruled.
Overruled.
ON MOTION TO RECALL MANDATE.