Case Information
*1 OFFICE OF THE A7-l.ORNEY GENERAL OF TEXAS
AUSTIN
Yonorable Bert Ford, ~ditilniatrator
Texas Liquor Control Board
Austin6 TeXaa
Dxir sir:
ion of this dep
as followar
ly aware, there are such SB boot- ivcn or the Toxaa Liquor control 80, ootivelp engaged in the pro- olstors of this type but muoh untered in apprehending them, evideme of violations of la.% when one are restria~ted to dealings with the military foroed.
*It ir often found desirable to attire law- enforoement offloers in a fashion that would de- ceive the oriminal into a reasonable belief that the officer ie a soldier. Xhaki olothing similar *2 FIonoreble Bert Ford, page.-2
to that of a aoldier oan readily be purohaaed In meroantlle sbbros which might serve the purpose, but In this connection there appeer to be oompli- cations which night give rlso to legal ob?ections to such practices.
"One of the prosecutors of the ,'.tete haa. sd- visnd OS clrcumtenoes wherein two officers, at- tired in khaki clcthi&y purc?lased privately and bearl?c no Insignia thereon, ep;roaoked a boot- legeer catering only to soldiers enA were sold liquor by this bootlegger. One of the officers ' wuae wearing a Sovermant eotuslly iesued over- seas cap whiah hed been picked up in some plaoe and the other was without suoh e cap. Ties were of the testure and color worn by soldiers, ea were the tan shoes they wore.
"The officers were clothed in this fashion for the axpress purpose of areatlng the Lmprea- sion in the mind of the bootlegger that they were soldiers of the United states AIIVIY. This took plaoe in the vicinity of one of the l8rge~mllitarg oamps looeted in the State.
There is a question In the rnlnd of the afore- mentioned prosecutor ,aa to the legality of lntro- ducing evidence obtained In this fashion, and.he has suggested that an opinion on the subject be obtained from your offloe.
wArtiole 147 of Vernon*6 Penal Code provide8 ee follows:
wYYhoever shall ssorete, sell, dispose of, offer foraale, purohaee, ret&In after demand made by a eommleaioned orrioer of the active militia of this State, or Ln any manner pawn or pledge any arms, uniroms, equipment6 or other military property, iesued under any provlalon of the law or of the military regulations of this State, and any pereon who shall wear any uniform, or pert thereof or devioe, atrap, knot or insignia of I any design er oharaotsr used as a deelgnation of *3 Honorable Eert Ford6 page 9
grade, rank or offloe, suoh as are by law or by general regulations duly promulgated, presoriived ror the use of the active militia of the ;‘tate, 02. similar thereto, exoept members of the army OS th6 United States or the active nilitS% of thie or any other state shall be Sined not less than one hundred nor more than five hundred dollars.'
Wkrtlole 727a, Vernon's Code of Criminal Fro- cedure, provid~es 86 Sollowa:
R*Xo evidenoe obtained by nnofficer or other person In violation of any plovisions OS the Con- stitution or laws 0r the State of Texas, or 0r tie Constitution of the united States of Ameri.ca, %hall be admitted in evidence against the accueod on the trial or nny criminal case.*
Under these oircumstances we would appreciate your opinion in response ~to'the following questions:
“1. Vould the introduction of evidenoe and the Offering of testimony by an offleer attired in a rashion designed to create the impression that he was a solaler or tha Tfnited Statesq army but none of which clothing was of G~Vernfmit issue, be legal in the prosecution for the offense of un- lawfully selling liquor $0 suoh officer in a dry wee?
*2. v0ula the intxoauoti05 0r tlrviaenoe and the offering of testimony by an OSfiOer who waa oth%rv!ise attired In privately purcbaased clothing, not OS Government issue but designed to oreate such impression, wearing an.overseas oap of Eovern- ment Sesue; be legal in the proseotuion of an of- renee of this cbarscter7"
Sectl~on 1893, Title 10, 0. 8. C. A., provides In part :
*It shall be unlawful for any person not an offioer or enlisted man of the United States Army, Navy, or Karlne Corps to wear the duly prescribed *4 Eoncrable J?%,rt Ford, psge 4
tdf01~11 Or th8 United StetOe AZYII~, Navy, or.lzarin% corps, or any dlstinatlve pert of suoh uniform or a unlrorm any part of whioh la elmllar to a dis- tlnctlve pert of the duly presorLbed uniform of the <nited States Army, Navy, or Ysrine Corpsi end it shall llk%wise be unlawful for any parson not s merrtber of the Women's Army Auxiliary Corpa to wear Its duly presoribsd uniform or any distinctive part thsrsor, or a uniform any pest OS whioh.16 slmllar to e aistinotlve part tireof: . . .
"Any person who offends against the prcvi- ' aIon of this seation shell, 05 oonvictlon, be punished by a fin% net exceeding $300, or by im- prisonment not exoeeding six months, or by both such fine end Imprisonment: . . ."
Arti 727a, Vernon~s Code of Criminal Prooedure, provide@ that no evldenoe obtained by an officer or other per- %on In violation "of any provIelons of the Constitution or lawe or the State or Texas, or or the Constitution or the United States OS Sm%rIoa-, shell be admItted In evidence against the aooused OA the trial Of any ariainal caere. In order ror the faota stated by you to come wIthIn the prohibition ~of that part, of aaid Artiols pertaInlag to the Constitution or lawa oS the s+dte 0r 78~8, they would have to oome withln~the provisions or Artiole 147 of V%rnon*s penal Oode whIoh Is quoted In your letter. A reading of this Art,lole, however, shows that It deals only writh unIrorm8, %qtipaept, eta., Issued under the provisions of the laws or mIlltars regulations of .thla State and there IE nothing stated In your letter ahloh would show a violation of this provision'of our Penal Code. The only provision of the lawsiof the United States of Amerioa that could have been viola.ted by said oifioers under the faots stated by your ie said Ssotion 1393, Title 10, U. 3. C. 8.. above set forth ., but R violetion of this law would not oome within trie ?rohIbitlons or sala Article 787a of the cod8 of CrImInal Frooedure, for the reason that this artlale‘does not ooter a law of the Ueitsd States of merioa and only covers the *constitution of the united States of Amerioa". It lr clear, therefore, that even though said officers mey have been vlolstlng the provisions of'sala Seotlon 1393 of th% Federal Statutes, the eeourlng or suoh~evldenc8 in suoh m%nn%r does not oome within them progibltions or said ABtlole 727a or cod% or Criminal prooeaure.
Xonorabls Bert Ford, page 5
If said officer8 wereviolating the laws of the State of Texes and/or of the United States of America In be- ing dressed a8 shown by your statement and for the purposes therein stated, there IS no statute in Texas whioh makes the securing or obtaining of evidence under suoh conditions a violation of the law, therefore, evidence so obtained would be admlseible. In tbia connection we direct your attention to the case of Rerry v. State, 12 S. II. (2) 581, aa follows: In this case Berry was indicted ror the sale of a h&lf of a gallon of whiskey and Vi111 Koore was named in the indictment as the purchaser. EIe teatiiled that.he purcheseU iron the appellant a half gallon or whiskey for whfch he paid him $7.50. The witness MoKinney, the Sheriff, testified that on the night or Ootober 2Oth, while he and Hllkoore were in. an automobile on the street, he saw the appellant en8 heard a conversation between him and ??oore .ln which-the appellant agreed to sell Moore some whlakey. BoXinney had given Moore a ten dollar bill with whioh to pay for the whiskey an4 saw. Moore receive it and pay the appellant for it. He then ar- rested the appellant and took from him the ten dollar bill. Boore wes a oegro and MoXinney wae the eheriff, who was dis- gu3ae4 so as t.o look like a negro. The appellant complained of the reoefpt in evidence of the t~estlmony of VaXlnney, the subat8noe or which la set out above. The appellant took position that by disgufelng hinitztdf?6oKinney violated the law and %hat.for that reason his testimony was inhfbbited by the statute (Article 727a, Vernon's Annotated Code of' Crimipi- nal hocednrs) in which it is deolared that evbdenoe obtained in violation of any provision of the Constitutfon or lawa of the State of Texas, or oi the United States, shall not be ad- mitted against the aocueed in any criminal case.
we quote froa; this oase as lollowe: *The opinion is expressed that the etatute mentioned would not bar the state from reoeivfng the evidence at present under oonslderatlon. If the contrary were true, however, the testimony of riOKinney is not more speoific than that of the witness Moore, whose teattiony to the effeOt that he bought the whisky from the appellant and pafd him for It $8 not controverted. h!oore*s testimony was reoelved over objection, the objection being that Molsinney, the, sheriff, was blaokened and disguised. The sheriff, in blackening hia face
f
gonorabls Part Ford, page 6
and fostering the commieeion OS the Oifenea, is ‘to be commenCed more Xor his zeal than for hi8 uriadom. . . .*
%a also refer to the aaae of Anderson v. State, 3B S. 7;. (2) 93, wherein appellant was convfoted oS the poesession of lntoxloatlng liquor for the purpose of sale. Ke made contention that the oaae should be revereed for the reason that he wae entrapped into the purchase of bhe liquor by an agent of the enforcement officers. The faots in. regard tothir oon- tention are not clear, but the oourt makes the statement that appellant cited Varioue precedenta upon the subject Of sVi- dance secured through a detective who aided In committing the orlme. In werruling said contention, Judge Korrow of said court mds the following holding on this question:
The subject has been dlaouaaed by
this o& &I many ocoaalone among them Quyer v State, 31 Tex. Cr.R. 489, 30’s. W. 450; ,Berrg v.’ State, 111 Tex. Cr. R. 281, 12 9. iR. (2d) 581.
. This court has never coauuended the praotloe men-
tioned, but has been oonatrained, in deferenoe tom the verdict, ‘t&support oonv&ctlons upon the testi- mony or the oharedter mentIan.ed. . . .* ,
&view of the Soregoing atatementa and the statu- tory provisions quoted and referred to, It is the’~ opinion ~oS tbis department that both of the queationa submitted by your should be anewsred In the aSSlrmatlv6. Trueting that this sstisraotorily anawera your inquiry, we remain Very truly youra
., . ATTORNEY QFWZRAL OF TEXAS AYPROVRD APR 23, 1943
Grover sellers
FIRST AsEISTMT ATTORREY GE?ZRAL BY /a/ Jaa. Wi Baseett
Assistant JvcB:mp
THIS OPINXO:; COKXDRRED AND
APPROVED R? LlRlTW GORPRRENGE JwBtBLw r