Herbert Clark, charged with transporting alcoholic beverages for sale in local option territory, under KRS 242.260, was found guilty and fined $100 and sentenced to 30 days in jail. See KRS 242.990(1). He appeals.
There must be a reversal of the judgment in this case for the reason shown hereinafter, with the result that another trial will likely be had. Aside from the error assigned upon which our reversal is based, it is urged the indictment should have been dismissed.
In this latter connection appellant strongly insists the alcoholic beverages that were found in a car he was driving, which fact constitutes the basis of his conviction, were obtained through an illegal search and seizure, no law having been violated by him before his car was stopped.
*624The evidence in this case is very skimpy and, so far as relevant, discloses that two troopers of the Kentucky State Police, Merle Harrison and Dan Davidson, on January 25, 1964, around 6:00 p. m., were on routine duty on U. S. Highway No. 119, traveling from Harlan toward Cumberland. They met a car near Ross Point. Trooper Harrison testified: “I noticed the car seemed to be setting very low in the back, and it was apparent the driver was having some difficulty. I turned and stopped the car at Chappell’s Dairy. As I walked up to the car to get the license, it was noticeable to the eye without strain there was a quantity of alcoholic beverages.” He stated he saw a case and some cans of beer with the name “Slitz” on them “setting visible” on the floor of the car where the back seat had been removed. Thereupon he arrested appellant, searched the car and found a considerable amount of whiskey and other intoxicants in the trunk.
On cross-examination this witness was asked: “And, when you saw this car go by riding kind of low in the rear did some idea formulate in your mind as to what the contents might be?” He answered: “No, sir, not at that time. The car seemed to have a little weave to it.”
Trooper Davidson, called as a witness for the Commonwealth, testified appellant’s reputation was bad for trafficking illegally in alcoholic beverages. Appellant did not testify.
There was no unlawful search under the evidence presented. When the' troopers approached appellant’s car in order to make their investigation, it is undenied the beer in the back part was in plain view. The constitutional guaranty which affords protection from an illegal search does not prohibit a. seizure without a warrant where there is no need of a search; that is, where the outlawed object discovered is visible, open and obvious to anyone who even casually looks about his surroundings. See Hancock v. Commonwealth, Ky., 262 S.W.2d 670, and Wilson v. Commonwealth, Ky., 258 S.W.2d 497.
The incriminating articles connected with the arrest of appellant and detected in his possession could be seized to Be used as evidence against him, Turner v. Commonwealth, 191 Ky. 825, 231 S.W. 519, unless it be shown the troopers had no lawful right to stop him. The latter assumes the detention was illegal per se if there was no offense committed in the presence of the officers.
This contention is obviously untenable in the face of Commonwealth v. Robey, Ky., 337 S.W.2d 34, and Commonwealth v. Mitchell, Ky., 355 S.W.2d 686. The Robey case states there must be a bona fide cause to justify the restraint by an officer of a motorist traveling upon a public highway. This does not mean, as that case points out, a bona fide cause arises only if an offense is perpetrated in the officer’s presence. In this connection the Robey case said at page 36 of 337 S.W.2d: “* * * the rule appears to be well established generally that if officers observe a motorist driving in an erratic manner such as to suggest the possibility that he is drunk they may stop him, and if they discover from mere observation of him after he has stopped that he is drunk the evidence so obtained is admissible in a prosecution for drunken driving $ §|S *
It will be noted that it is sufficient reason to stop a motorist if he is driving in an erratic manner. In the case at bar appellant was observed by the troopers to be “having some difficulty” and his car “seemed to have a little weave to it.” This, we believe, under the authority of the Robey case, was enough irregularity in the way he handled his car to give the officers a bona fide cause to stop him. KRS 189.730(1) provides, so far as applicable here, that any trooper “ * * * may, at any time, upon reasonable cause to believe that a motor vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the *625driver of such motor vehicle to stop and submit such vehicle to an inspection and such test with reference thereto as may be appropriate.”
Likewise, in the Mitchell case the action of state police officers in setting up a “road block” for motor vehicles for the purpose of requiring drivers to display an operator’s license is not an unlawful arrest or restraint or an illegal search contrary to the Constitution of Kentucky, and hence evidence that the driver who was stopped had no license was admissible in a subsequent prosecution for operating a motor vehicle upon a public highway without an operator’s license.
The Mitchell case also emphasizes the fact, and we believe properly so, that the enjoyment of many personal rights and freedoms is subject to many kinds of restraints under the state police power, including such reasonable conditions as may be determined by the governmental authorities to be essential to the safety, good order and public welfare. See also Commonwealth v. Abell, 275 Ky. 802, 122 S.W.2d 757.
We conclude no ulterior motive or special pretext was shown as a reason for stopping appellant’s car; furthermore, a bona fide cause was established for the stopping. Therefore, the discovery from mere observation of the alcoholic beverages in his automobile made his arrest legal and, in consequence, made the contraband liquor competent evidence to be used in the charge preferred against him.
Other grounds of a strictly procedural nature were complained of as prejudicial errors, but as none of these should recur at another trial we deem it unnecessary to discuss and resolve them.
The judgment of conviction must be reversed, however, because of an error in “Instruction No. 1.” It will be recalled appellant was indicted for transporting alcoholic beverages in local option territory for the purpose of sale. The instruction, as phrased, did not require the jury to believe the transportation was for the purpose of sale in order to find him guilty.
The mere possession of alcoholic beverages in an automobile in local option territory is not a violation of the statutory provision dealing with the transportation of alcoholic beverages in local option territory for the purpose of sale. See Irvin v. Commonwealth, Ky., 317 S.W.2d 178.
Where the charge is “transporting for the purpose of sale,” the words “for the purpose of sale” are the material part of the charge. See Commonwealth v. Polous, 197 Ky. 280, 246 S.W. 799. Obviously the instruction was defective because it failed to contain the “material part” of the offense of which appellant was indicted.
Wherefore, the judgment is reversed for further proceedings consistent with this opinion.