My brethren think the motion for rehearing should be granted in this case because the facts do not show that Mr. Glasscock had a reasonable belief that appellant's car was being used in illegally transporting intoxicating liquor, when same was searched by Mr. Glasscock without warrant. My brethren adhere to the conclusion announced in our original opinion that an automobile engaged in the illegal transportation of such liquor in the presence or view of the officer may be searched and seized without warrant, provided it appear that the officer so searching did so upon facts fairly supporting a reasonable belief on his part that such car was then being so used. To this I also adhere. I am unable to agree to the reversal of this case for reasons now set forth.
There are three bills of exception. One to the admission of the testimony of Mr. Glasscock; one to the admission of the testimony of Sheriff Stone, and a third too the refusal of a peremptory instruction to acquit, based on the alleged erroneous reception of the testimony of said two officers. Bills of exceptions Nos. 1 and 2 set out that the testimony of said officers was objected to only because they had no search warrant, and hence their search was in violation of Chapter 149, Acts of the Thirty-ninth Legislature; and the use of their evidence thus obtained was inhibited by Chapter 49 of the same acts, both said chapters being quoted in our original opinion. Said bills show affirmatively that before the officers testified, appellant on leave granted asked each of them if he had a search warrant, and receiving negative answers, made the objection referred to. *Page 21 Necessarily the trial court acted upon the objection made, and necessarily this court upholds or reverses upon the objection appearing in the bill of exceptions. No rule is better settled than that requiring the objection not only to be stated, but also that there be before the trial court a showing of facts in consonance with and supporting such objection. Our original opinion affirms, and we all now agree, that the failure of the officers to have a search warrant was not only not a determinative fact, but that it made no difference at all in deciding the admissibility of the testimony of the officers. In fact, the opinion of my brethren on this rehearing is in no way made to depend upon the having of such warrant by Glasscock. So it is easily apparent that my first reason for declining to reverse this case, or to agree that it should be reversed on rehearing, is that the bills of exception do not raise, much less properly present, the issue of an objection made to a search upon probable cause without a search warrant. Our books are full of opinions of our illustrious predecessors, and of the court as now constituted, not only to the effect that testimony deemed objectionable must be pertinently objected to, but also that the objection made must be made in such terms as to raise the point and bring before the trial court the very issue he is called on to decide, and also that the truth of the objection made must be shown in the bill of exceptions itself. It is here asserted that neither bill of exceptions in this record shows that objection was made to the testimony upon the ground that the officers had no probable cause for believing the automobile engaged in illegally carrying liquor, — but that both bills present the unquestioned objection based upon a wholly different reason. It is also asserted that neither bill acts out facts upon which the trial court or this court could determine the issue upon which my brethren reverse this case. For myself I am unwilling to overturn in terms or in effect the unbroken rules of this court in regard to bills of exception, and to reverse this case upon a proposition not raised nor shown to be true by said bills of exception. I am at a loss to know how an objection stating only that the search was without warrant could be held to bring before the court the point that the real objection was that now decided by my brethren, viz., that there was no probable cause for the search made.
But my brethren say the facts before the trial court did not justify him in holding admissible the testimony of Mr. Glasscock, because such facts do not show that the officer had reasonable ground for believing the car of appellant was being used to transport intoxicating liquor. I may later discuss the sufficience *Page 22 of the facts in this regard, but here observe that the trial court was only called on to pass on the objection made, and was not called on to pass on the sufficience of the facts to show probable cause. The correctness of the action of the court below is not to be tested by objections which might have been made. This has never, and I trust will never be the rule. The correctness of the rulings of the nisi prius courts are tested by the objection which was made and which appears in the bills of exception.
Passing the question of the failure of the bills of exception in this case, I briefly discuss the sufficience of the testimony as supporting a reasonable belief on the part of Mr. Glasscock that the car of appellant was transporting liquor, finding myself also unable to agree with the proposition that such testimony was not so sufficient.
My brethren discuss at length the case of Carroll v. United States, 267 U.S. 132, which held admissible certain testimony on the ground that the officers from whom the testimony was sought had probable cause for believing the car searched by them was engaged in illegally transporting liquor. Said opinion also lays down general rules for determining the issue when raised in cases of search without warrant of an automobile so engaged. With the general rules laid down I have no fault to find, nor am I in any opposition to the conclusion of fact reached in that opinion, but I am firmly convinced that the facts in the instant case afford better ground for the reasonable belief on the part of Officer Glasscock than did the facts in the Carroll case, supra, afford ground for such belief on the part of the officers in that case. That this may here appear, I give a summary of the pertinent facts in this case and in the Carroll case. In the Carroll case certain officers in September met the defendants at an apartment to which the latter came in a car; Carroll and Kiro agreed to get for the officers whiskey; they did not do so, and nothing in the record suggests that they attempted or intended to do so; the officers next saw them in the same car in October, but did not arrest them; they next saw the defendants in December in the same car, were of the belief that they had whiskey, stopped the car, searched it, and found a large quantity of liquor; held, the officers had reasonable ground for believing the car was being used for transporting liquor, and, therefore, had the right to search it without warrant. In the instant case, two officers patrolling a highway leading from Louisiana into Texas saw appellant alone in a coupe, and, their suspicions being aroused, they followed him about a mile and a *Page 23 half and overtook him; they said they would like to search his car. He said nothing. Ezell, one of the officers, went to appellant's car, talked to him, then came back to Mr. Glasscock, the other officer, who was "kind of in front," and said to Glasscock, "It is loaded." The officers then went back to appellant's car, opened the rear of it, looked in and found 274 quarts of intoxicating liquor. Glasscock said from the smell of the liquor he knew it was whiskey. They arrested appellant, took him to where the sheriff was, who also looked in the car, saw and examined the liquor. My Brother Morrow has quoted at length in the opinion of the majority from the resume made by the United States Supreme Court of the testimony in the Carroll case. Far be it from me to criticise the great judge who wrote the opinion in said case either in his statements, reasoning or conclusions, but aside from the fact that the officers had met the defendants in that case in Grand Rapids in September at a place to which defendants came in the same car used by them on the day of their arrest, and that the defendants on that occasion agreed to get for said officers whiskey — the facts in the Carroll case afford no more ground for a reasonable belief that the car of Carroll et al. was being used for transporting liquor three months later, than do the facts in the instant case. When the officers met Carroll and Kiro in December on the highway and stopped them and searched their car, they had no information from any source that that particular car on that occasion had any liquor in it. Nor did they have any other reason for believing such fact other than that the two men in that same car had met the officers three months before and had engaged to get them liquor, which engagement was not kept. In the opinion of the Supreme Court certain geographical positions and public facts are stated as matters of judicial knowledge, which might be truly and correctly stated as applicable to the case at bar. The entire testimony given upon the witness stand in that case is set out in the dissenting opinion of Mr. Justice McReynolds, who concludes and asserts that the officers had only a suspicion when they searched Carroll's car. Be that as it may, in justice to my opinion here, I deem it but fair to say that in that case a disconnected circumstance occurring three months before, and which had no immediate relevance to the question as to whether Carroll had whiskey in his car, was relied on as affording ground for reasonable belief that his car was transporting liquor. The facts in the instant case are much more cogent. It may be debatable whether the fact that a man has been once convicted of transporting *Page 24 liquor would justify an officer thereafter in stopping his car whenever he saw it on the highway; it may be doubted if a promise to get liquor for another, which is not fulfilled, affords substantial ground for belief that the car of the promiser is engaged in transporting liquor — but when a reliable person engaged to assist an officer, or acting with the officer, examines the car in question, talks to the occupant of the car, and comes to the searching officer and states to him that said car is loaded, and search of the car reveals the fact that it contains a large quantity of whiskey, this to my mind affords much stronger ground for reasonable belief on the part of the officer. We must remember that Mr. Glasscock gave the only testimony relative to what occurred at the time and place of the search of appellant's car. Mr. Ezell did not testify, nor did appellant. Glasscock testified relative to what occurred when they overtook appellant: "I was kind of in front, and Ezell was talking to him. Ezell went to the car before I did, and he came back, and I walked back to the car, and Ezell said, 'It is loaded.' * * * We opened the back end of the car and looked in it. * * * I never tasted any liquor in those bottles, but I could smell it. I am familiar with the smell of whiskey, and can testify it was whiskey." It must be borne in mind that Ezell and Glasscock were not searching for loads of wood or logs, but were officers seeking to apprehend violators of the liquor laws, and that Glasscock fully understood when Ezell came to him and told him that the car was loaded, what the latter meant. This statement was made by Ezell to Glasscock before the car was searched, and was certainly made by a reliable party. Whether Ezell obtained his information regarding the car from his conversation with appellant, or from examining the car, or from the odor which might have pervaded it, is not made to appear, but it is an undisputed fact that he returned from his conversation with appellant and examination of the car and made the statement, and to me it seems without room for debate to furnish far more satisfactory proof of the reasonable ground for belief on part of the officer whose testimony and acts we are discussing, than appears in the Carroll case, supra. The information received by the officer in this case was direct and indicative of the identical car and the very transaction. The source of Ezell's information was not revealed or explored on the trial. It is quite possible that the state did not care to explore it, and that appellant did not dare so to do. Also it is probable that in view of appellant's entire reliance upon the theory that the testimony was inadmissible because the officer had no search *Page 25 warrant, he paid no attention to any other phase of the transaction and made no effort to show the officer had no probable cause.
My understanding of all the authorities and precedents, as well as my conception of the duty of this court, is that he who asserts error in the acts and rulings of the trial courts assumes the burden of manifesting same to the appellate court. Whether the error be of the charge or in relation to the admission of testimony, the complaint or exception shown in the record on appeal must make plain that at the proper time and in legal manner pertinent objections were made and exceptions taken.
I have devoted careful scrutiny to the bills of exception in this case and am entirely satisfied that they are not in conformity with the rules and precedents, and am as firmly convinced, quoting from the Carroll case, supra, that "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched," and so believing, I am of opinion that appellants motion for rehearing should be overruled, and from the opinion of my brethren granting same and reversing this case, I most respectfully dissent.