Weaver v. State

• Decision Date: 15 March 1933
• Docket Number: No. 15655.,15655.
• Citation: 59 S.W.2d 396
• Parties: WEAVER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 396

59 S.W.2d 396

WEAVER v. STATE.

No. 15655.

Court of Criminal Appeals of Texas.

March 15, 1933.

Rehearing Denied April 26, 1933.

Appeal from District Court, Cherokee County; C. E. Brazil, Judge.

C. H. Weaver was convicted of transporting intoxicating liquor, and he appeals.

Affirmed.

Perkins & Perkins, of Rusk, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for transporting intoxicating liquor, punishment being two years in the penitentiary.

This is the second appeal. The result of the first will be found reported in 119 Tex. Cr. R. 334, 44 S.W.(2d) 731. A companion case, Oscar Weaver v. State, is reported in 117 Tex. Cr. P., 335, 38 S.W.(2d) 85.

Officers found in the car occupied by appellant and his brother, Oscar Weaver, thirty half-gallons of whisky. The only question presented is whether in advance of the search which resulted in finding the whisky the officers were in possession of information which furnished probable cause for the search. When the question came up in the trial the court retired the jury and heard evidence upon the issue of probable cause, which evidence is brought forward in a separate statement of facts. After hearing the testimony the court ruled that probable cause existed and permitted the evidence of the officers to go to the jury. This ruling of the court we are asked to review. The evidence on the issue of probable cause is too long to be set out in full. It shows that the search was made at night on a road between Rusk and Reklaw at a bridge over Mud creek. The officers were not looking for appellant nor his brother on the occasion in question, but had a warrant to arrest Red Parrish. Four officers all traveling in one car went to the home of Parrish. Whether they arrested him there or at the creek as they came back towards Rusk is uncertain from the record. At any rate, the car belonging to Parrish, in some way not shown from the record, arrived at a point near the bridge over Mud creek, and was parked there. Two officers secreted themselves behind said car and the other two took Parrish to Rusk. It was shown that the officers had received information two or three times and from more than one party that appellant was transporting intoxicating liquor to and from Rusk to Reklaw, and was making said trips once or twice each week. There were two roads between Rusk and Reklaw. The officers had no information as to which road appellant traveled, nor that he would be on the particular road where the search was made on the night in question, nor that he would have whisky with him on that particular night. About 2 o'clock that night the officers saw a car approaching from the direction of Rusk; near the bridge the car slowed down and the horn was lightly sounded, and the car then went on north. As it passed the officers recognized appellant and his brother as the occupants of the car. No effort was made to stop them at that time. Before the parties were recognized the car was again gathering momentum. In about ten minutes the car came back. In the meantime the officers had received no additional information as to whether appellant was then transporting intoxicating liquor. As appellant's car approached the bridge on the return trip it slowed down, or stopped, and appellant said, "Come out of there, Red." It was then the officers proceeded to the car and searched it. In addition to the information already stated which they had received regarding appellant's movements, the officers had also been informed that appellant was delivering to Red Parrish the liquor he was said to be transporting. It was Red's car behind which the officers were hidden, and it was Red whom appellant invited to come out. The officers had a right to rely, not only upon the information they had received from other parties, but in connection therewith could properly take into consideration all the circumstances immediately preceding the search which gave color to the advance information. It was upon these combined facts the...