Appellant files an exhaustive motion for rehearing, urging that the facts of the present case do not bring it within the rule announced in Odenthal v. State, 290 S.W. 743; Battle v. State, 290 S.W. 762; Paulk v. State, 293 S.W. 169, and insists that the officers had no information prior to the beginning of the search upon which to predicate probable cause. Our analysis of the evidence does not lead us to such conclusion. The facts of the present case are not dissimilar to those found in Rochelle v. State, 294 S.W. 860. In the present case two officers at night observed a car traveling ahead of them and the tail light disappeared over a hill. When they reached the top of the hill the tail light was not to be seen. Continuing on the road they soon found the car turned partly out of the road but the rear wheels in it and the lights out. At this time the officers did not have any suspicion that there was anything wrong but thought someone was in trouble and drove around the car and asked if they needed help. Seeing someone in the car under the steering wheel but receiving no reply to their inquiry one of the officers threw his flashlight on the car. Appellant was discovered to be at the steering wheel. In that connection the officer testified:
"When I first flashed my light on him to see who it was when he did not answer, I could see the fruit jar case and the tops of fruit jars in that case. That was all he had on the front seat beside him. There was whiskey in those fruit jars. I could *Page 666 tell there was something in them. I could smell whiskey. That was out in plain view. There were eleven quarts of whiskey in the case."
It is apparent from this testimony of the officer that before he got out of his car he could see the carton of fruit jars on the seat beside appellant. This would furnish "probable cause" upon which the officers were justified in acting in then approaching the car and making a closer examination from which the discovery resulted that the jars contained whiskey. As was said in Rochelle's case (supra) the officers violated no provision of the State or Federal Constitutions nor of the statutes of this state when they stopped at appellant's car and inquired if he was in trouble, nor when receiving no reply to their inquiry they threw the flashlight upon the car. The fruit jar carton on the seat beside him was in full view of the officers at this time and their further investigation of the probable contents of the jars was justified under the cases heretofore cited and is in accord with the holding of the Supreme Court of the United States in Carroll v. U.S.,267 U.S. 132, 69 L.Ed. 543, 39 A. L. R. 790.
Appellant's motion for rehearing is overruled.
Overruled.