McTyre v. StateMcTyre v. State
- Reporters:
- , ,
- Before:
- Morrow Judge., Lattimore Judge.
J. H. French of Daingerfield and J. A. Ward of Mt. Pleasant for appellant.
A. A. Dawson of Canton, State‘s Attorney, for the State.
MORROW, Presiding Judge.—The offense is the possession of mash for the purpose of manufacturing intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.
Operating under a search warrant, officers searched the premises of the appellant consisting of his mansion, an outhouse about 75 feet from the mansion, a chicken house, and an inclosure of land
The receipt of the evidence was attacked upon the ground that the search was in violation of the Constitution and statutes of the state, and that its receipt was inhibited by
The attack upon the affidavit is untenable. It contained affirmative and detailed statements touching the information upon which the affidavit was based sufficient to comply with the law defining “probable cause.” See Chapin v. State, 107 Tex. Crim. Rep. 477. The search warrant commanded the officers to search the “private residence, outbuildings and premises occupied by the appellant.” The position taken by the appellant is that the affidavit was capable of supporting the search warrant for the search of a private residence but that that part of the warrant which authorized the search of the outbuildings and premises occupied by the appellant was not supported by the affidavit; that the variance between the affidavit and the search warrant rendered the search of the buildings and premises other than the mansion house illegal. A description of the premises to be searched in the affidavit and in the warrant is an essential requisite of a valid search warrant. It is so declared in the Bill of Rights,
“No warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.”
The description of the place in the affidavit limits and controls
In
“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.”
In the present instance the question arises, Does the description of the place to be searched as contained in the affidavit, namely, the private residence of the appellant, embrace the other parts of his premises which were described in the warrant and which were searched by the officers? In passing Art. 691, supra, the intention of the Legislature to make a distinction in the form and substance of an affidavit for a search warrant as between a private residence occupied as such and other places seems clear. To search a place other than a private dwelling under Title 6 of the Code of Criminal Procedure (which is made a part of Art. 691, supra, so far as may be) the affidavit for a search warrant under the oath of but one credible person would be sufficient, and a warrant may issue authorizing the search for intoxicating liquor possessed, sold, transported or manufactured, and for containers, instrumentalities for the manufacture, transportation and unlawful possession for sale; while for the search of a private dwelling the warrant shall issue only upon the affidavits of two credible persons showing that such residence is a place where intoxicating liquor is sold or manufactured in violation of the law. We have held in Wolf‘s case, 9 S. W. (2d) 350, that an unreasonable search is one which trenches upon the peaceful enjoyment of the house in which he dwells or in which he works and does business, and those things connected therewith, such as gardens, outhouses, and appurtenances necessary for the domestic comfort of the dwelling house or that in which the business is conducted. In its limitations, the immunity intended is analogous to that which applies to the curtilage of which the common law speaks, and does not render unreasonable the search of woods, fields, ravines or open
Touching the meaning of the term “private dwelling,” “private residence” or “private house,” the precedents are numerous and apparently conflicting. Many of them are collated in Corpus Juris, Vol. 19, pages 843-844, and in Vol. 17, p. 437. The conflict is probably more apparent than real when the precedents are analyzed and considered in the light of the facts controlling in the decisions mentioned. Many of the precedents confine the term “private residence” or “private dwelling” to the mansion house alone while others extend it to the localities within the curtilage. In interpreting the statute under consideration (
We are therefore constrained to conclude that the search warrant in the present instance based upon an affidavit describing the place as a “private residence” would not be authority for searching any of the premises of the appellant which were searched except the mansion house, and in that house there was found, according to the testimony, no evidence that therein intoxicating liquors were sold or manufactured. It follows that the evidence obtained in the search of the appurtenances was inadmissible, and that the judgment of conviction based thereon must be reversed. It is so ordered.
Reversed and remanded.
HAWKINS, Judge. —I concur in the opinion of Presiding Judge Morrow as to the legal questions discussed and the reversal of the judgment. In order to avoid any possibility of misunderstanding I think it is not improper to say that the officers observed appellant coming from the direction of a pasture between which and the house was a cotton patch; the officers testified that they “back tracked” appellant to a point within fifteen or twenty steps of where five barrels were found which had recently contained “whisky mash ready to run.” Mash was still flowing on the ground where the barrels had been recently overturned. This was found in a pasture and the evidence regarding it was admissible without a search warrant. Wolf v. State, 9 S. W. (2d) 350. Appellant did not testify but his wife gave evidence which made an issue as to whether appellant was coming from the place where the mash was found. The evidence which was improperly admitted as to finding in the outhouse jugs bearing the unmistakable odor of whisky could have been and doubtless was appropriated by the jury in determining that the mash was in the possession of appellant, and more particularly, the purpose for which he possessed it. This would prevent an affirmance of the judgment on the principle announced in Gurski v. State, 93 Tex. Cr. R. 612; Turner v. State, 95 Tex. Cr. R. 593; Cartwright v. State, 97 Tex. Cr. R. 230, and other like cases. The facts of the present case would call for the application of the recognized rule that the admission of illegal evidence material and pertinent to a controverted issue, and which is in addition to facts legally in evidence, is erroneous and hurtful and that a conviction under such circumstances should not be permitted to stand. See McWilliams v. State, 44 Tex. 116; Kelsey v. State, 4 S. W. (2d) 548, and authorities therein referred to.
LATTIMORE, Judge.—I cannot refrain from expressing serious doubt as to the correctness of giving to the expression “private dwelling” or “private residence” the limited interpretation placed on it by my Brethren in this opinion, viz., restricting it to the actual house occupied by the family and the ground on which same stands. It seems to me more in consonance with the purpose of the exemptions regarding such residence, in both the Constitution and decisions of the courts,—to hold that the expression “private residence” was intended to, and it does, include those outhouses and appurtenances necessary to the use and occupancy of a private residence as the home of a family. In such case the finding of articles in a chicken house and the yard by a search under a warrant based on an affidavit to search only a private residence would be admissible, and the case should not be reversed, but I do not care to file a dissenting opinion.