*1 identify as the will a document which is
inconsistent with the one offered. judgments of the courts below are judgment
reversed and is here rendered admitting the order document
probate he ánd same is set aside and probate of said document vacated.
It is further ordered that County
of this Court be certified to the County
Court of for Ward observance.
Rule Texas Rules of Civil Procedure. KORN, Appellant,
Walter Bernard Texas, Appellee. The STATE of Burton, by Roy Q. Jones, Min- Minton & No. 39156. ton, Austin, appellant. for Appeals Criminal of Texas. Blackwell, Atty., Philip Dist. Thomas D. March 1966. Austin, Nelson, Atty., Jr., A. Asst. Dist. Atty., for Douglas, B. Leon State’s Rehearing May 25, Denied 1966. the State. WOODLEY, Judge. possession is the unlawful years. marihuana; punishment, evidence, jury admitted
The state’s obtained as objection that it was over search, shows illegal arrest result ap- following his arrest during the jail and pellant taken to cigarette procedure marihuana booking pocket. his shirt was found in legality question presented The sole is the of the arrest. heard relating
The evidence jury’s absence shows: by the in the court parking Appellant arrested Lounge, City also, area of Mi Gran See 400 S.W.2d *2 30, 1965, approx- of at January (3) persons work, and to able “[a]ll [who] imately P.M., by them, 8:40 o’clock Lieutenant property support have no and who George Phifer of the De- fair, Austin Police have no visible or of known means partment. reputable livelihood,” honest and are and shall punished vagrants. be as
Lt. Phifer had received information that group there was a of people to have known Statutes enacted before and after police records, convictions, including felony adoption of the Constitution of 1876 have sup- there (Overton) and one of them person declared an' idle who lives without posed carrying gun. to be any support means of and makes no exer- employ- tion to obtain a livelihood honest proceeded officers to the vagrant. ment to be a Lounge and still while outside Lt. Phifer appellant present saw Neither Lounge any pre- come from the and statutes nor go ap- pro- to his vious statute car. Lt. Phifer that of this state have in knew terms pellant penitentiary vagrant may had served time in the vided that a be arrested with- and had been vagrancy. convicted for As out a warrant. recently January 4,1965, he had been ar- hand, On the other ap- both the state and rested charged Lt. Phifer and with pellant agree that no case has been found
vagrancy. wherein expressly this court has held that vagrancy is not a breach of the or questions, answer Lt. pre- Phifer’s against peace,” “offense or ceding arrest, and appel- at the time of his expressly has person held that a cannot be lant stated that working he was not and that arrested for without a warrant there nothing with him that he wrong pursuant whether there is an ordinance work, could not gave the same excuse Art. 214 Vernon’s Ann. C.C.P. or not. given he had previous after his arrest on January 1965, which was to the effect urges appel state that the that he get job could not paid enough lant was lawful under the money to make worth while. ordinance, Austin There is no contention that the arrest V.A.C.C.P. under the this court appellant suspicion was on that, mere Haller or from his knowledge and his conversation S.W. appellant,
with the officer had no rea- provides: Art. V.A.C.C.P. son to believe was able bodied; was without sup- visible means of municipal “The authorities of towns and port and unemployed, his only may reason cities authorizing establish rules or excuse being job get arrest, he could not warrant, persons without found paid enough money suspicious to make it worth places, and under circum- while. reasonably stances which show that such persons guilty felony have been some Art. Section of the Constitution of threaten, peace, breach of the Texas, 1876, Ann.St., provides: Vernon’s are about to commit some offense Legislature shall, “The at its first session the laws.” adoption Constitution, after the of this en- act vagrant effective laws.” hearing jury’s absence, At the state introduced Section of the Austin 1.10 Ann.P.C., 607 Vernon’s Sections City Code, Suspicious known as Persons (2) (3), provide (2) “Persons Ordinance, which reads: leading an life, idle, immoral or profligate who them, have no property support policemen “All hereby who are work,” able to work and do not empowered, authorized and in the exer- discretion, reasonably tending
cise of a arrest with- sound to show that he is about person found any out warrant therefor to commit some mu- some suspicious place, person nicipal found ordinance. reasonably tending under circumstances Appellant distinguish would Haller person to show such been has State, 72 S.W. *3 peace, felony of some the or breach of state, by upon the the facts. In that case ordinance, municipal or violation of some for vagrancy woman was “for a arrested against or about to commit some offense in being prostitute” found a and man municipal against some state law or some fame, her, reputed of ill bed with in a house ordinance.” associating vagrancy was arrested “for for prostitute.” with a These without arrests “vagrancy” The contends that state also this lawful by warrant were held court to be public peace” against the and is an “offense by arrests a Dallas ordinance. authorized under 212 the arrest was lawful Art. V.A.C. C.P., provides: which appel The writer’s views are peace person, “A officer or other by lant’s Art. 999 arrest was authorized warrant,
may, without
arrest an offend-
need not
Vernon’s Ann.Civ.St. and
we
er when
is
in his
the offense
committed
by
also authorized
decide whether was
view,
presence
his
if
of-
within
212
the Art. 214 V.A.
Art.
V.A.C.C.P. or
felony,
fense is
as a
or as an
one classed
ordinance.
C.C.P.
”
public
‘offense against
peace.’
police officers
Art.
relates to
998 V.C.S.
Appellant contends:
part
city
provides
of a
town and
powers, rights
shall have like
such officers
authority
statutory
That
(A)
there is no
authority
city
marshals.
and
as are vested
for
of a citizen
a war-
without
Art.
vagrancy,
rant for the offense
duties of
Art. 999
relates
V.C.S.
being applicable
212
not
because
C.C.P.
part:
city
provides in
marshal and
vagrancy
against the
an offense
not
peace
public
arrest,
a
and
constitute
does not
“It
without
shall he his
warrant,
peace,
breach
peace.
public
of the
all
of the
violators
* * *
guilty
shall be
and all
who
City Austin
The
(B)
ordinance of
any disorderly
or disturbance
conduct
pursuant
enacted
to Art. 214
au-
C.C.P.
* *
whatever
police
thorizes
without
officer to arrest
State,
circum-
following
a warrant
136
In Bennett v.
Tex.Cr.R.
present
only,
stances
drunken-
none which
arrest was for
124 S.W.2d
public
in a
place.
case or are shown
this
in a
“Drunkenness”
ness
conduct,”
“disorderly
defined
record:
held to be
mean,
Dictionary to
International
Webster’s
person
in a sus-
(1)
When
is found:
among
things,
other
"offensive
rea-
picious place;
under
(2)
circumstances
public decency,
law
without
morals
has been
sonably
show
he
tending to
order,”
held
the arrest
and this court
felony;
(3)
circum-
guilty of
under
some
city policeman for
aby
warrant
without
show that
reasonably
tending
stances
Art.
under
justified,
not
such
breach
has been
of some
he
C.C.P.,
powers giv-
hut under the broad
212
reasonably
peace; (4)
circumstances
under
policemen under
city
en the
marshal and
some
violated
tending to
that he has
show
Arts. 998
999 V.C.S.
ordinance;
circum-
municipal
(5) under
for
reasonably tending to show
as it held that
the arrest
stances
Insofar
212
by Art.
some offense
is about
commit
drunkenness was not authorized
he
C.C.P.,
State, supra, was over-
law;
under circumstances
(6)
state
Bennett v.
some
peace,
person
turbance of the
because
ruled in Cook v.
who commits
breach of
that the
au-
now
important
conduct” is
in the case before
city or
thorized a
officer of a
town
only upon
question
us
of whether
but
person
without
found
to arrest
warrant
the arrest of
not
public place, though he was
drunk in a
as well as
C.C.P.
creating
otherwise
hold-
a disturbance.
ordinance, (both
applicable
the Art. 214
place
ing
that drunkenness in a
*4
where the offense
an offense
is
pur-
per
“disorderly
se
conduct” within the
peace)
peace or a
of
breach
statute,
Supreme
of the
view
only
by
Art. 999 V.C.S.
said:
police
which
a city
vests in
officers of
“By his
voluntary
own
superin-
acts he
town authority to
warrant all
arrest without
duced the necessity, or
cause,
at least the
any disorderly
who shall be
of
con-
of his arrest.
‘Disorderly’
only
does not
duct as well as all
violators of
‘confused,’
mean
order,
or out of
but al- peace.
‘lawless,’
so
contrary
to law. Webster.
authority
of
The writer is
no
aware
good
There is
authority for holding that
holding
apply
that Art. 999
not
V.C.S. does
‘any conduct which is contrary to
is
law
to vagrants.
reasoning
609
The
that Art.
within the
“disorderly
definition of
con-
P.C.,
en-
which makes it the
lawof
duct,” as given by standard lexicogra-
complaints
forcement officers
to make
phers.’ State
rel. Tyrell]
Jersey
v.
[ex
vagrants, precludes
a lawful ar-
City, 25
[536], 541.”
N.J.Law
vagrant
by
of a
rest
without warrant
police
town,
city
supported
of
officer
Pratt v. Brown
by
was cited
Supreme
by
authority.
no
Court Washington
City
v.
Seattle
Franklin,
297,
191Wash.
Among other cases Supreme Court Washington City was Walsh v. “Except where the statutes mani City Trenton,
Council of 117 N.J.Law 64, contrary intention, may fest a 818, 186 A. phrase where construing the ordinarily disorderly “disorderly con be considered city conduct” as used in the 1(2), Disorderly charter duct.” 27 Conduct court § said: C.J.S. p. 510. “We consider act which violates the writer, in in McCrady The his dissent v. Criminal is certainly Code disorderly con- * * State, 408, 509, 166 316 duct Tex.Cr.R. S.W.2d and more attention 999 directed to Arts. 998 and Washington pointed court out the V.C.S. and said: distinction between disorderly conduct and 580, “Cook 238 tending conduct public peace, disturb the 200, 136 S.W.2d Bennett in the following language: 359, Tex.Cr.R. S.W.2d “There a difference between authority disorder- holding deemed
ly conduct and conduct tending prostitute disturb arrest of the officer who public peace. Disorderly conduct is assignation witnessed her was lawful. a broader term breaching ‘disorderly than or dis- the Bennett case conduct’ conclusion is reached “all morals wherein the held mean ‘offensive ” necessarily disorderly conduct is not public decency.’ peace.” breach of the and in
In Bennett v. State Pratt v. Brown, legislature of the attention early I adhere to decision While authority directed had been to the fact that pronouncement this Court and the therein V.C.S.) (by conferred Strittmatter, parte of Ex case authority of a like had officers whereas vagran holding the S.W. sheriffs, granted not been constables or cy constitutional, unmind statute I am not appointed other elected and officers. opinion ful dissenting of the of Mr. Justice Douglas recently February as as We conclude the trial court did not Hicks, in the case of Petitioner v. District appellant’s err in arrest was Columbia, S.Ct. wherein Mr. lawful obtained the re- evidence expressed Douglas his view Justice such arrest was sult search incident to “vagrant” defining statute was unconstitu admissible. prece tional. I am content follow the is affirmed. dents announced this Court until such Supreme time as the Court of the United con opinion States down an to the hands McDONALD, Presiding Judge (concur- trary. feel Lan I do not that the case of ring). *5 Jersey, 451, zetta v. of New 306 U.S. State Woodley I Judge concur with the as to point in S.Ct. 83 L.Ed. disposition cause, in affirming of this the the successfully supporting extent of an However, of the trial court. I constitutionality attack our am not in reasoning accord with his in statute”, “vagrancy declaring it uncon reaching the result. stitutional. be affirmed under I think this should case judg- I concur in the affirmance of the V.A.C.C.P., provisions of Art. ment the trial court. is authorized officer wherein an offender when arrest without a warrant presence or in his MORRISON, (dissenting). offense is committed Judge one view, the offense is his
within if very Vagrancy statutes nature their felony, or as as a classed “offense place po- responsibility an awesome Haller v. public peace.” against the patrolling lice Such statutes officer beat. 872; Hackett 294, 162 S.W. man because of authorize the arrest of a 391. S.W.2d 172Tex.Cr.R. status, singu- opposed his to arrest for a order, lar provisions overt act violation feel that I further reason, laws demand the for this these City of derived Ordinance application. adequate 214, V.A.C.C.P., utmost discretion their from Art. conviction. of this justify an affirmance An this conviction would affirmance of arrest with- any police officer to two authorize only between the real distinction probable out cause is, 212, supra, a warrant and without provisions foregoing difficulty prior with has had Ordinance, man who that the statute Austin and the go. I peace”, This far refuse law. says, “against peace”. says “breach of Ordinance prior this All the officer observed from the says “disorderly arrest was that walked Judge Woodley in effect There front his automobile. with- of a tavern to for the arrest reason conduct” in- appellant suggestion agree no cannot with a warrant. I out opinion his toxicated. Jersey decision New 609, V.A.P.C., provides Article
shall be the of the law enforcement
personnel named therein to make com-
plaint empowered oath to an under officer warrants, vagrants. to issue criminal
Such article makes it a misdemeanor comply
an officer to fail to therewith. State, Tex.Cr.App., 394
Williams v. S.W. supports squarely
2d
the arrest in this case was unlawful. respectfully
I dissent. SANDERS, Appellant,
J. D. Texas, Appellee.
The STATE of
No. 39274. Appeals
Court of Criminal of Texas.
March
Rehearing May 25, Denied Moore, Clyde A. Woody, W. Fred James Dailey,
H. Jr., Farra, Houston, P. John for appellant. Vance, Atty., Carol S. Dist. C. James Brough Dunn, C. Asst. Dist. Thomas Attys., Houston, Douglas, B. and Leon Atty., Austin, State’s for the State. WOODLEY, Judge. murder; punishment,
life. appellant, alleged indictment day July,
or about the 5th “did with