Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.
Appellant's car was on the street at Lampasas. He was approached by an officer. According to appellant's own testimony, while a witness, — the officer informed him that he had a warrant to search his car, and appellant said "There it is, go ahead." The officer raised up the turtle back and looked in, and said "Here is the whisky."
The officers testified that when appellant was informed that they had a search warrant for his car he said "Wait a minute, let's walk down this alley and talk this thing over." When informed that it was too late to talk now, appellant said "Well, you've got me," and "I want a chance to get rid of it." The officers further testified that appellant said "Well, don't look in it, let's drive the car wherever you want it." They drove the car to the jail where it was found to have in it eleven half gallons of whisky. Appellant had been watched by the officers for some time and they had observed him driving the car to a point some eight blocks from the square where his and another car stopped near enough to each other for a person to reach across. Other movements of appellant's car were also noted up to and until appellant parked it where it was when the officers went to it, as above referred to.
Appellant has five bills of exception. The first complains of testimony detailing the conversation between the officers and appellant, above set out. The stated objection was that no predicate had been laid for its introduction as an incident to the search of the car; no search warrant had been introduced, nor facts or circumstances amounting to probable cause for search of the car; that such conversation was incident to and part of an illegal arrest of appellant. Beyond question appellant was in possession of the car and its whisky contents at the time. It is plain that what was said and done by and between him and the officers at the time was res gestae of the offense here charged, to-wit: possession of intoxicating liquor for purposes *Page 20 of sale and was therefore admissible in evidence. Kelly v. State, 102 Tex.Crim. Rep.; Carrell v. State,3 S.W.2d 435; Wright v. State, 13 S.W.2d 111; Boone v. State,114 Tex. Crim. 653.
Bill of exceptions No. 2 presents objection to testimony showing the search of appellant's car and the finding therein of whisky, — the objection being substantially the same as that above stated, — with the further objection that the statements of appellant set out and objected to in bill of exceptions No. 1 were not admissible, but if admissible furnished no ground for probable cause upon which a search might be made. We are unable to agree with appellant. The statements were admissible, and did furnish probable cause under all the definitions of that term in the authorities. In addition, we observe in appellant's own testimony, given by him while a witness in the case, the following: "In a few minutes Mr. Harvey come up and motioned to me and said 'Come here John'. I walked over to him and he says 'I have a search warrant for your car', and I says 'Yes, there it is, go ahead', and he raised up the turtle back and says 'Yes, here is whisky', and I says 'Let me explain,' and he said 'No, it is too late.' " This we think showed also search upon consent of appellant.
Bill of exceptions No. 3 complains of the introduction of a part of the conversation had between appellant and the officers, above referred to. We think all the conversation then had, admissible. So also bill of exceptions No. 4 only sets forth the same complaint, in substance, as that appearing in bill No. 2, supra, and in our judgment presents no error.
Bill of exceptions No. 5 sets out supposed error in the refusal of a continuance because of the absence of witnesses Seabolt and Kirk. Appellant was indicted in 1931 and tried in 1933. Seabolt's testimony, as set out in the application, appears to be only as to hearsay statements which should have been made to him by one Sims, the effect of which testimony was that Sims had borrowed appellant's car on the night of the alleged offense, and put whisky in it and left it there. We have had before us some cases wherein the guilt of the accused was shown only by circumstantial evidence and in which it appeared that the confession of some third party excluded the possibility of the guilt of the accused, and in these cases we have held such testimony admissible. Powers v. State, 18 S.W.2d 631. In the case before us appellant put on the stand a man named Cockrell, who swore that on the night in question a man came to his house in appellant's car wanting to sell whisky. Cockrell said this man was not Ed Sims, the alleged absent witness. *Page 21 What appellant wanted to prove by his absent witness Seabolt is above set out. We are not impressed by the proposition that this case is one of circumstantial evidence. The further movements of appellant just prior to his arrest and statements made by him to the officers, are wholly at variance with any such proposition as that he had loaned his car to Sims, and that the latter put whisky in it without appellant's knowledge or consent. We do not think it necessary to discuss the refusal of a continuance in so far as it related to the witness Kirk.
Being of the opinion that no error appears in any of the matters complained of, the judgment will be affirmed.
Affirmed.
ON APPELLANT'S MOTION FOR REHEARING.