1 S.W.2d 288 | Tex. Crim. App. | 1927
Conviction is for the possession of intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary.
Appellant with her children occupied a house, part of which was used as their private dwelling, a part was let to roomers, and still another portion was devoted to business purposes, where confections and cold drinks were sold. The sheriff procured a search warrant and with other parties searched the premises and found a small quantity of intoxicating liquor.
It was admitted upon the trial that the search warrant was invalid and it was not relied on as authorizing the search. The trial was conducted as if no search warrant had ever issued, the sole contention on the part of the state being that if the searching officers were in possession of information amounting to "probable cause," the search was authorized in the absence of a warrant. If this contention is incorrect the judgment must be reversed. We think the statutes settle the question against the state. Title 6, C. C. P., relates to procuring the issuance of search warrants generally. At the Second Called Session of the Legislature, 1919, p. 238, the provision of said Title 6 was supplemented by what is now Art. 691 of the penal code, and which reads as follows, with the parts not applicable deleted.
"A search warrant may be issued under Title 6 of the Code of Criminal Procedure for the purpose of searching for and seizing and destroying any intoxicating liquor possessed, sold, or to be sold * * * in violation of this law * * * * No warrant shall be issued to search a private dwelling occupied as such unless some part of it is used as a store, shop, hotel, or boarding house, or for some purpose other than a private residence, or unless the affidavits of two credible persons show that such residence is a place where intoxicating liquor is sold or manufactured in violation of the terms of this act. The application for the issuance of and the execution of any such search warrant, and all proceedings relative thereto, shall conform as near as may be to the provisions of Title 6 of the Code of Criminal Procedure, except where otherwise provided in this title." * * *
It is plain that the Legislature by the foregoing enactment contemplated the necessity of a search warrant to authorize the *300 search of either a private dwelling, store, shop, hotel, or boarding house, the only distinction being that where the warrant was sought to search a private dwelling two affiants instead of one were required. In 1925 the Legislature still further supplemented the statute already in operation by the enactment of what is now found in the Code of Criminal Procedure as Arts. 4a, 4b, and 727a, and which articles are as follows:
Art. 4a: "It shall be unlawful for any person or peace officer, or state ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any persons without having first obtained a search warrant as required by law."
Art. 4b: "Any person violating any provision of this Act shall be deemed guilty of a misdemeanor and upon conviction shall be punished by fine of not less than $100.00 nor more than $500.00, or by confinement in the county jail not more than six months, or by both such fine and imprisonment."
Art. 727a: "No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."
The place searched in the present instance is one of those designated in Art. 4a. Construing that article in connection with Art. 691, the conclusion is not to be escaped that in the absence of a valid warrant authorizing the search Art. 727a inhibits the use of the evidence obtained.
Art. 690, P. C., declares: "Any animal, automobile, flying machine, airplane, boat, ship, or other vehicle or instrumentality used for the unlawful transportation or storage of intoxicating liquor" to be a public nuisance, and authorized peace officers to seize without warrant any such instrumentalities used in their presence and view either for the unlawful transportation or storage of intoxicating liquor, or for the commission of any other act made penal by Chap. 7 of the P. C. Following Carroll v. U.S.,
"We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."
For convenience the reported cases which follow Odenthal v. State are collated here as follows: Battle v. State,
It is clear that the principle announced in Carroll, Odenthal, and other cases following them has no application in the present case.
Article 212, Code of Criminal Procedure, authorizes a peace officer to arrest without warrant where a felony is committed in his presence. Where a legal arrest occurs the right to search follows. See Washington v. State,
From what has been said it follows that the judgment must be reversed and the cause remanded, and it is so ordered.
Reversed and remanded. *302