Hightower v. State (2 S.W.2d 263, 1928)

MORROW, P. J.

The offense is the unlawful possession of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

Langford, a constable, testified that on a certain street in the town' of Whitewright he observed the appellant sitting on the front seat of an automobile drinking from a bottle. Appellant laid the bottle down, and the witness walked towards the car and saw a half gallon jar full of whisky on the seat of the car. Just before the officer reached the car, appellant got out of it, went into a market, from there to a street, and entered an alley. The officer took the half gallon jar full of whisky from the ear and left it in the market. Appellant later came back to the car and ^vas there arrested by the witness. The bottle from which the appellant had been drinking had the odor of whisky. There was another bottle, a keg, and a wagon sheet in the car. The whisky gotten from the car was tasted and proved to be intoxicating. The officer testified that he had no search warrant, but that before going to where the appellant’s car was situated he knew of his being there, as he had been so notified over the telephone.

We find but one bill of exceptions in the record, which, omitting the concluding part, which is formal, reads as follows:

“Be it remembered that in the trial of the above-entitled cause that after the witness, Ed Langford, had testified to seeing the defendant drink something out of a bottle that looked like a grape juice bottle while sitting in the front seat of his Ford car, and that as he 'went up to the car he saw a half gallon, fruit jar full of corn whisky in the front seat, and that defendant ran away from the car as he went to it, but afterwards he arrested the defendant at the ear, the county attorney asked the witness, ‘Did you find anything else in the car?’ to which the defendant objected because immaterial, irrelevant, prejudicial, and hearsay, which objections were by the court overruled, and the witness answered, ‘Yes; there was another bottle in there and a keg and a wagon sheet.’ ”

In bis brief, appellant makes the point that bis arrest and tbe search of bis automobile was illegal and the evidence obtained thereby improperly received. We cannot say that the arrest was not upon probable cause. It appears to be within the rule stated in Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762; Odenthal v. State, 106 Tex. Cr. R. 1, 290 S. W. 743; and Moore v. State, 107 Tex. Cr. R. 24, 294 S. W. 550. However, the bill of exceptions does not seem to present the question for review. It fails to show that there was any objection made to the fact that there was a half gallon fruit jar full of corn whisky found upon the seat of the car of which the appellant was in possession. The objection is directed to the question, “Did you find anything else in that car?’’- and to the answer,- “Yes; there was another bottle in there and a keg and a wagon sheet.” The objection to these was immaterial and irrelevant. The bill does not show it to be so. Besides, the officer testified that the bottle had a small quantity of whisky in it.

Finding no error in the record, the judgment is affirmed.

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