Baray v. StateBaray v. State
- Reporters:
- , ,
- Before:
- Morrison
Lead Opinion
Thе offense is the possession of marijuana; the punishment, 15 years.
Three officers of the narcotic division of the San Antonio *457police were parked at a cеrtain location on the night in question watching for a certain automobile of which they had a completе description and which belonged to two brothers who were known narcotic peddlers. The automobile аrrived, parked near a small grocery store, and a group of teen age boys converged upon it. Thеy saw the driver of the automobile reach in his shirt pocket and hand something to one of the boys. At this juncture, the оfficers started their automobile in that direction, and several of the boys called out in Spanish, “The dogs are coming,” and the driver of the automobile looked back and then drove away. One of the officers droрped off at the scene, and the two remaining officers pursued the fleeing automobile, observed the driver reach in his shirt pocket and then drop some cigarettes out of the automobile window. Within a block they wеre able to bring the automobile to a halt and place the appellant, who was alone therein, under arrest. Following this, they retraced their course and recovered four cigarettes from the street аt the point where they saw the appellant drop them. At the police station the appellant’s shirt wаs taken from him and, with the cigarettes, was sent to the Department of Public Safety. The cigarettes and the shirt pocket were shown to contain marijuana.
The appellant did not testify in his own behalf, but called several witnеsses who were present at the scene, saw the officers searching in the street but did not see them find anything.
We shаll discuss the contentions advanced by diligent counsel in brief and argument.
He challenges the legality of the arrest and the search of the person of the appellant. The state introduced in evidence an ordinаnce of the city of San Antonio enacted pursuant to the terms of Article 214, Y.A.C.C.P. “authorizing the arrest, without warrant, of persons found in suspicious places and under circumstances which reasonably show that such persons hаve been guilty of some felony or breach of the peace, or threaten, or are about to сommit some offense against the laws.”
Reliance is had upon Palacio v. State, 162 Texas Cr. Rep. 194, 283, S.W. 2d 765, and Thomas v. State, 163 Tex. Cr. Rep. 68, 288 S.W. 2d 791. In neither case was there introduced in evidence an ordinance such as before us in this case. In addition to this, we note further that the act of the аppellant in handing something to one of a group of teen age boys who congregated about his autоmobile when it came to a halt, his act of looking back at the officers and hurriedly driving away when some of thе boys *458cried out in Spanish a colloquialism which, according- to the record, meant that the narcotic рolice were coming, his act in throwing a number of cigarettes out of his automobile while being pursued by the pоlice, when taken with the information which they had received about the automobile which he was driving, abundantly supрorted the legality of his arrest, and the search became proper as an incident to the lawful arrеst. We cite in support of such holding French v. State, 162 Texas Cr. Rep. 48, 284 S.W. 2d 359; Piland v. State, 162 Texas Cr. Rep. 362, 285 S.W. 2d 230; Sanders v. State, 166 Texas Cr. Rep. 312 S.W. 2d 640; Slaughter v. State, 166 Texas Cr. Rep. 403, 314 S.W. 2d 92; and Sutton v. State, 166 Texas Cr. Rep. 580, 317 S.W. 2d 58.
Appellant’s last contention that the city ordinance is unconstitutional was decided adversely to him in Purdy v. State, 159 Texas Cr. Rep. 154, 261 S.W. 2d 850, and Crippen v. State, 80 Texas Cr. Rep. 293, 189 S.W. 496.
Finding the evidence sufficient to support the conviction аnd no reversible error appearing, the judgment is affirmed.
Lead Opinion
ON MOTION FOR REHEARING
DAVIDSON, Judge.The ordinance of the city of San Antonio, drawn under thе authority of Art. 214, C.C.P., reads as follows:
“AN ORDINANCE #25,357
“AMENDING SECTION 16-64 QF THE CITY ‘ARREST WITHOUT WARRANT’; AND REPEALING ORDINANCE NO. 17,251, AUTHORIZING THE ARREST OF PERSONS WITHOUT WARRANTS UNDER CERTAIN CIRCUMSTANCES, PASSED AND APPROVED ON FEBRUARY 21, 1952.
“BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SAN ANTONIO:
“1. Section 16-64 of the City Code of San Antonio is hereby amended to read as follоws:
“ ‘Sec. 16-64. Arrest Without Warrant.
*459“The policemen of the City, in exercise of sound discretion, may arrest without warrant any person or pеrsons found in suspicious places and/or under circumstances reasonably tending to show that such person оr persons have been guilty of some felony or breach of the peace, or violation of somе municipal ordinance, or about to commit some offense against some state law or against some municipal ordinance.’
“2. PASSED AND APPROVED this 1st day of August, A.D. 1957.
“/s/E. R. Crumrine
“Mayor Pro-tem
“ATTEST:
“/s/J. Frank Gallagher
“City Clerk”
Art. 214, C.C.P., reads as follows:
“Authority of municipality
“The municipal authorities of towns and cities may establish rules authorizing the arrest, without warrant, of persons found in suspicious places, and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”
It will be noted that the ordinance goes further and includes rights and privilеges not incorporated in Art. 214, C.C.P., in that the ordinance authorizes an arrest of one found in a suspicious plаce under circumstances reasonably tending to show that such person has been guilty of violating some municiрal ordinance.
Appellant insists that the ordinance in that particular is repugnant to the general laws of this state touching arrest without warrant and that it authorizes an arrest by a policeman of the city of San Antoniо for offenses made unlawful only by a city ordinance and involving neither a felony nor a breach of the pеace and not authorized under the provisions of Art. 214, C.C.P.
A determination of this appeal does not require us to pass upon that question or upon the validity of the ordinance in the particular mentioned, for here, the facts authorized appellant’s arrest under the other provisions of the ordinance as well as the general law.
*460A determination of the question raised by appellant is not necessary to a disposition of this case, and a ruling thereon is expressly reserved.
The motion for rehearing is overruled.