¶1 ON MOTION FOR REHEARING.
¶2 — In a well prepared motion, supported by oral argument, appellant complains of our decision of this case. He cites a number of authorities which, in • our opinion, do not sustain his contention.
¶3 It is apparent from the facts in this case that when the officer engaged appellant in conversation relative to his ownership of the car in which appellant was riding, and which the officer believed for certain reasons to be a stolen car — that the officer had no belief or suspicion of the fact that appellant had in the car whisky, or that he was then engaged in the illegal transportation of such intoxicating liquor. The question as to whether such suspicion in a case of search for intoxicating liquor, or other fruits of crime, be based upon facts sufficient to form probable cause, as that term is understood and applied by the courts, has been the subject of many opinions by this and other courts. However it is not believed that the entrance into a car, or the examination of it for some legitimate purpose, in good faith, can be classed as the beginning of a search, or be brought within the purview of any of the cases referred to. If the officer in this case had had it in his mind to search appellant’s car for intoxicating liquor, or stolen goods, or any other purpose such as is fairly comprehended in the definition of a search thereof, under the facts of this case we would not likely hesitate to hold it a search without probable cause because not supported by facts sufficient to justify the search.
¶4*90 That which differentiates this case from cases of the kind above referred to is the fact that there was no intention on the part of said officer to search, and no claim that he had probable cause therefor. It could hardly be within the bounds of reason that if one entered a car innocently, or for any ordinary purpose other than that he thought it contained contraband articles, or was engaged in illegal enterprises, and after entry discovered therein whisky or stolen property or other matters which would be pertinent as evidence upon the trial of some cause, that such evidence should be rejected, and its rejection justified upon the ground that it had been obtained in violation of some law of this state, or of the Constitution of this state or the United States, as is the present demand of article 727a, C. C. P. It is as though one was invited to enter a car, or entered it innocently by mistake. His testimony as to what he saw or observed in a car under such circumstances certainly could not be claimed to be evidence found in violation of law. In out opinion the motion is not well founded.
¶5 The motion for rehearing will be overruled.
¶6 Overruled.