In his motion for rehearing appellant advances the contention that in receiving in evidence the testimony of the officer to the effect that there was whisky transported in appellants automobile, the court committed an error of a fundamental nature rendering the case reviewable without a bill of exceptions showing that the evidence was introduced over the objection of the accused. In Sec. 11, C. C. P., 1925, it is said:
"The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case."
Our examination of the statement of facts, however, leads us to conclude that the testimony of the officer to the effect that there was whisky in the car of the appellant was admissible. Appellant was driving his automobile upon the public road at night-time without lights. He was pursued, overtaken and stopped by an officer. In driving his car without lights on the public highway the appellant was committing an offense authorizing his arrest. See P. C., 1925, Arts. 798 and 803; also Hardiway v. State, 108 Tex.Crim. R.; Hawley v. State, 107 Tex.Crim. R.. Without making any search of the car, the officer observed a gallon jug full of whisky sitting in the front of the car. In transporting the gallon of whisky, the appellant was prima facie guilty of a felony committed in the presence of an officer, which justified the arrest of the appellant and the search of his car. See Moore v. State,107 Tex. Crim. 24, 294 S.W. 550; Jones v. State, 85 Tex. Crim. 538,214 S.W. 322; Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Merriman v. State,20 S.W.2d 1051.
The motion for rehearing is overruled.
Overruled. *Page 600