The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for one year.
Appellant challenges the sufficiency of the evidence. We are of the opinion that the evidence is sufficient to support the verdict of the jury and the judgment rendered thereon.
Briefly, the testimony introduced by the state was that three kegs of whiskey were found by officers near the town of Lubbock; that these kegs were concealed in some tumble-weeds; that the officers waited near the kegs of whiskey; that several persons came by at different times and loaded the kegs in their vehicles and started away with them, but that in each instance the officers required them to return the kegs to the place where they had been concealed; that about ten o'clock at night appellant and one Reed drove in an automobile to the point where the kegs of whiskey were concealed, and that they stopped the car and appellant got out of the car and carried a keg of the whiskey over and put it in the car; that Reed got a second keg of whiskey and started to the car with it; that when appellant went back to get the last keg the officers made known to the parties their presence; that upon the presence of the officers being made known to the parties, Reed ran to the car and attempted to start it while appellant ran down the road; that the officers searched the car and found twelve half-gallon fruit jars of whiskey and three one-gallon jars of whiskey; that at the time appellant and Reed were apprehended by the officers, Reed said to appellant, "You damn son of a b____, see what you've got me into"; that appellant replied, "I didn't get you into it, you got me into it, its your car"; that shortly prior to the time that appellant and Reed came to the point where the whiskey was hidden they had driven up the road in view of the officers and remained for about thirty minutes; and had then driven to the point where the whiskey was concealed; that there were no fruit jars of whiskey in the vicinity of the kegs of whiskey, but that said fruit jars were found in the car immediately after the apprehension of appellant and Reed.
Appellant defended on the ground that he intended to secure some of the whiskey for the purpose of taking it to his home for the use *Page 441 of his wife, who was sick, his contention being that on account of her physical condition his wife required whiskey as a medicine. Appellant testified that he had learned from parties in the town of Lubbock that the whiskey was concealed near the road a short distance from town. He further testified that Reed called him to his (Reed's) car and took him to the point where the whiskey was concealed, and that before he and Reed left Lubbock Reed did not tell him where he was going.
Appellant reserved numerous exceptions to the court's charge. We have carefully examined the charge of the court in connection with the exceptions and are of the opinion that said exceptions were not well taken.
By bill of exception Number 1, appellant complains of the action of the trial court in admitting over his objection the testimony of the officers touching the results of the search of the car. The bill of exception shows that the officers making the search were not armed with a search warrant. Appellant's bill of exception is predicated on Articles 4a and 727a of the Code of Criminal Procedure, wherein the search of the private residence, actual place of habitation, place of business, person or personal possessions of any person without first having obtained a search warrant as required by law is penalized, and the evidence obtained in violation of the constitution and laws of the State of Texas or of the United States of America is expressly declared to be inadmissible in the trial of any criminal case. Appellant's contention cannot be sustained. One who commits a felony in the presence or view of an officer may be arrested without a warrant. Article 212, C. C. P. 1925; Moore v. State, 294 S.W. 550. The arrest of appellant being justified, the search of the car was legal and the evidence objected to was properly admitted by the court. We quote from the case of Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145, as follows:
"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits, or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158, 45 S. Ct. 280; 69 L. Ed. 543, 553, 39 A. L. R. 790; Weeks v. United States,232 U.S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652, 655, L. R. A. 1915 B, 834, Ann. Cas. 1915 C, 1177.
See also Moore v. State, 294 S.W. 550. *Page 442
By bill of exception Number 4, appellant complains of the action of the court in admitting over his objection the testimony of the officers as to the statements made by appellant and Reed at the time of their apprehension and at the time of the search of the automobile. Appellant objected to the statements on the ground that he was under arrest at the time the statements were made, and that the requirements of the statute relative to confessions had not been complied with. The officers were permitted by the court to testify that when they got around behind the car Reed said to appellant, "You damn s__ of a b____, see what you've got me into," and that appellant replied, "I didn't get you into it, you got me into it, it is your car." We are of the opinion that the statements were admissible as res gestae. It follows that it is immaterial whether appellant was under arrest when the statements were made.
There are several other bills of exception in the record which we will not undertake to discuss in detail. However, we have carefully examined such bills and find that they manifest no reversible error.
Finding no error, 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.