It is insisted by appellant that our opinion is not supported by Carroll v. United States, 267 U.S. 132; Odenthal v. State,290 S.W. 745, and Battle v. State, 290 S.W. 763, but that it is diametrically opposed to the announcements made in said cases. We thought at the time the original opinion was delivered that the facts of this case brought it squarely within the principle announced in those just mentioned. However, in view of appellant's motion we have again reviewed all the evidence and are further convinced that we made no mistake in our original opinion.
As we understand the testimony it shows that appellant was a white man. Stuart was a negro at whose house a negro dance *Page 85 was in progress. Appellant was seen by the officers to drive in an automobile to a point in front of and near Stuart's house. When the officers approached a number of negroes were around appellant's car. As the officers came up the negroes left the car and went towards the house. Appellant, who was in his car under the steering wheel, started the engine as the officers approached. McDonald, one of the officers, testified:
"As I approached the car the defendant started the motor, and I went up to the side of the car and spoke to him and says, 'Hello, Rochelle, what is the excitement out here?' I don't think he said anything right then. I then looked back between the front and back seat and there was a fruit jar carton back there with some jars inside of it; there were three quart jars full of corn liquor and one fruit jar about a fourth full, and a soda pop bottle that had the odor of liquor in it, and two empty quart fruit jars with the odor of liquor in them. The defendant was the only one in the car; he was sitting under the steering wheel in the car."
Upon being recalled and questioned about the conversation which occurred at the car the witness further said:
"That was not the starting of the conversation, that was after I had spoken to him, and saw this whiskey in the back of the car and found out what it was; I had spoke to him and asked him what the excitement was, and he said nothing, and it was perhaps two or three minutes from then until I had the conversation at the car. I went up there to the car and spoke to Rochelle and asked him what the excitement was, and he said nothing — I mean that he meant there was no excitement — he said the word 'Nothing,' and then I looked behind the seats and saw the liquor and examined it, and that is when he made the statement to me, and that was two or three minutes after, something like that, the length of time was separated in that way."
Neeley, another officer, testified:
"When we got up there I saw Mr. Rochelle sitting there in his car with the engine running, and when we got to the car there were several negroes around this car. I looked in the car — we could see in the car from where we were — we saw acarton with some fruit jars in it; there were three quart fruit jars full of whiskey, and one quart about a quarter full, and two empty jars with the odor of whiskey, and a soda water bottle with the odor of whiskey. This carton was just an empty box that has got this corrugated pasteboard in between, just a regular box that they come in, and it looked new, just had the top throwed back." *Page 86
In appellant's motion the qualification placed upon a bill of exception by the trial court to the effect that the whiskey was in plain view of the officers and that no search was necessary to find it, is very severely criticised as being a most remarkable qualification not authorized by the evidence, and an invasion of the province of the jury. We would observe that appellant was not required under the law to accept the bill as thus qualified, but might have refused such acceptance, or have had the court note over his signature an objection to such qualification. He did neither, but accepted the bill as thus explained. The court by such explanation could add nothing to the testimony. As the presiding judge he was called upon to determine the admissibility of the evidence in the absence of a search warrant and the explanation is helpful to this court as indicating what impression had been made upon the trial judge by the evidence detailed before him. The officers violated no provision of the State or Federal Constitution nor of the statutes when they approached appellant's car and inquired what "was the excitement," nor when they observed in his car the fruit jar carton with jars in it. Truly the contents of the jars could not be definitely known until an examination of them revealed it, but the question to be determined is, were the facts and circumstances known to the officers and observed by them antecedent to a search or examination of the contents of the jars sufficiently strong in themselves to warrant a cautious man in the belief that the contents of the automobile offended against the law? If so, "probable cause" existed to authorize the subsequent examination or search and the receipt in evidence of the result thereof was not inhibited.
We are confirmed in our opinion that the circumstances under which the officers observed appellant's car, and the facts which appear plainly from the evidence, that without any search or violation of any of appellant's legal or constitutional rights they could see in the car between the seats the carton with the fruit jars in it presented a case of "probable cause" authorizing the officers without a warrant to examine the contents of the car, and that the court committed no error in permitting them to detail before the jury what they discovered as a result of such search.
Appellant's motion for rehearing is overruled.
Overruled. *Page 87