The offense is transporting intoxicating liquor; the punishment, confinement in the penitentiary for eighteen months.
Appellant was driving his automobile along a street in the city of Marshall. A search of the car by an officer disclosed approximately fifteen gallons of whisky. Appellant testified that he had borrowed the car from a friend and was on the way to Louisiana to purchase some pool tables. He said he did not know the whisky was in the car.
Appellant objected to the testimony of the officers touching the result of the search on the ground that no search warrant had been issued, and that there was no probable cause authorizing the search without a warrant.
The court qualified appellant's bill of exception as follows:
"When objection was made to the testimony complained of in this bill of exception, I retired the jury and heard the following testimony from the witness Ezell, from which I concluded that probable cause existed for the search of the defendant's automobile: 'At the time I first noticed Mr. Bell's car I noticed something unusual about it; it was the number plate on the front of the car; I first noticed how it was fastened on the car. When I first noticed that the car was stopped. No, I did not stop the car at that time I had noticed, as I was going to say, I had noticed the front number being wired on the car and the first thing that popped in my mind was it was a stolen car. It wasn't a Harrison County car. So, after the light changed to green and I pulled out on East Houston he passed me and I noticed the back number wired on practically the same as the front end, and if I do say it, that is one way we detect lots of stolen cars. I stopped Mr. Bell and got out of my car and came back to where he was at. I glanced in the left hand door, the side he was on, and the side I went to the glass in the door was down possibly two inches from the top. I was on the driver's side of the car talking to him. The glass liked about two inches being all the way up. I went up to the car. I said something to him. My purpose in going to the car in the first place was to investigate to see if he was the rightful owner of the car. Yes, I went to ask the defendant if the car he was riding in belonged to him, and I asked him if he had any papers on that particular car. When I got to *Page 88 the car the door was still closed. At that time I asked him if he had any papers in his possession showing ownership of the car. He said that he didn't, but that he had some papers identifying himself. He did say something to me with reference to showing me the papers; he was feeling in his pockets, I believe he had on a lumber jacket, best I remember, anyway a kind of jumper and he was feeling in his pockets. When he began feeling in his pockets I opened the door of the car to see the papers he was feeling for, to show me about the papers he had. Q. At the time you stopped the car up until the time you opened the door of the car, Mr. Ezell, did you have in mind or did you intend to make any search of the automobile for intoxicating liquor? A. No sir, didn't have it in mind. That hadn't occurred to me. My sole and only purpose in doing what I did was to ascertain if that was a stolen car. I opened the door about that time. When I opened the door I observed something in the pocket of the door — a pint of liquor. When I observed that I did not have to make any search of the car to see that. It was in view, about one-third of the bottle above the pocket in plain view. When I saw that I said something to the defendant. I first picked that up and looked at it and I glanced back at the time over his shoulder and I seen there was some fruit jar cases in the car and a cushion laying on top of it, and I says to him, 'How much have you back there?' and he says, '15 gallons.' I did not search the car at that time. I never at any time made a search of the automobile before I brought him back to town. I did not have any intention of searching the car. My only purpose in doing what I did was to ascertain if it was a stolen car. Q. Before you did search the back end of the car he stated to you he had 15 gallons of whisky? A. Yes, sir, really I couldn't have sworn he had any in the back until I got back to the police station. He told me he had 15 gallons of whisky and that is before I made an examination to see.'
"From the foregoing testimony it appeared that not only did probable cause exist for searching the automobile, but it appears that the defendant, before the search, made admissions to the officers which were found to be true. The court was of the opinion that the testimony was admissible under such circumstances."
We deem it unnecessary to decide whether the officer was warranted in stopping appellant and questioning him as to the ownership of the automobile. If he went beyond his legal rights, appellant could have opposed his action and driven away in his car. Upon observing a pint bottle and some fruit jar cases in the car, the officer asked appellant how much he had in the car. Appellant replied that there were fifteen gallons. Acting upon appellant's statement, the officer was within his rights in making the search. Appellant's declaration that he had whisky in the car was not to be excluded by reason of article 727a, C. C. P., which provides that no evidence obtained in violation of the law shall *Page 89 be admitted against the accused in a criminal case. Appellant's declaration that he had whisky in the car was one that he was not forced to make. Had he remained silent he would probably have been in better position to oppose the reception of the testimony of the officer touching the result of the search. Having made the declaration to the officer that he had fifteen gallons of whisky in his car, which statement was found to be true, the proof thereof was authorized under the exception embraced in the confession statute permitting evidence of the statements of one accused while under arrest, where such statements lead to the discovery of the fruits of the crime. Carter v. State, 113 Tex.Crim. Rep., 22 S.W.2d 659. We are constrained to hold that the bill of exception, as qualified by the trial judge, fails to manifest error.
An examination of all of appellant's contentions leads us to the conclusion that reversible error is not presented.
The judgment is affirmed.
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.
ON MOTION FOR REHEARING.