Opinion
No. 15432.
Delivered December 7, 1932. Rehearing Withdrawn January 11, 1933.
1. — Intoxicating Liquor — Evidence — Search Without Warrant.
Where appellant testified that the officers found the whisky in his car, appellant cannot complain of testimony that the officers searched his car without warrant and without probable cause.
2. — Intoxicating Liquor — Circumstantial Evidence — Charge.
Where the facts are such as to establish case on direct testimony, held, trial court need not charge on circumstantial evidence.
Appeal from the District Court of Bowie County. Tried below before the Hon. Geo. W. Johnson, Judge.
Appeal from a conviction for the transportation of intoxicating liquor; penalty, confinement in the penitentiary for one year.
Affirmed.
The opinion states the case.
Keeney Moseley, of Texarkana, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.
There are two complaints, — one of the reception of testimony of the officers who followed appellant several blocks, overtook him, searched the car, and found ten gallons of whisky. We note that appellant took the witness stand in his own behalf and swore that the officers found the whisky in the car. This testimony in the record without objection renders of no avail appellant's complaint that the officers searched his car without warrant and without probable cause. As decisive we cite Reusch v. State, 119 Tex.Crim. Rep., and the authorities therein cited. Both appellant and the officers testified to the driving of the car before it was searched. The other complaint was of the refusal of the court to charge on circumstantial evidence. The facts are such as to establish this as a case of direct testimony.
No error appearing, the judgment will be affirmed.
Affirmed.
ON REHEARING.
Since the affirmance of the case and the filing of the motion for rehearing, appellant has filed his written request, duly verified, asking that said motion be withdrawn.
The request is granted, the motion for rehearing will be withdrawn, and the mandate issued at once.
Motion redrawn.