Worth v. State
12 S.W.2d 582
Tex. Crim. App.
1928
Check Treatment

*1 The State. Richard Worth June Rehearing denied *2 the case. states Gilmer, Florence & Florence of for Canton, A. A. Dawson of State’s State. Attorney, MARTIN, absent from the a sen- record . There tence, which constitutes the final arewe judgment, jurisdic- P.; to on this 767, case. Article C. C. pass Doyle 286 S. W. 214. P., See also collation of cases in Vernon’s C. C. 3, Vol. dismissed.

Appeal

Dismissed. foregoing opinion has been Court of Criminal and Court. APPEAL REINSTATED. MARTIN, Judge Offense, the unlawful possession equip- .

ment for the manufacture of intoxicating liquor; penalty, year.

This case was dismissed because formerly transcript no sentence. Motion to made, reinstate same has been accompanied certified sentence, copy and motion is appellant’s accordingly and the case granted will be considered on its merits.

Officers entered appellant’s without a search warrant and found one ten still and worm about 100 from gallon yards appel- orchard, lant’s residence in an barrel fifty about one-fourth gallon full of mash about 150 west of his yards an old fence row, and still and worm on little branch fifty gallon about three or four hundred south or southeast yards residence. appellant’s

Various bills present question inadmissibility contends that testimony. Art. Paragraph Texas, Constitution of which guarantees security possessions seizures, from all unreasonable searches 4a, and Art. C. C. P. 727a, and Art. C. C. P. (1925), were violated (1925), court in the admission of evidence of the officers above related. There was no search of the residence of appellant, case under decisions of many this Court contention appellant’s It be correct. claimed that the search apparently be- illegal cause within the curtilage this is the question pre- A like sented. question exhaustively discussed the case of cited cases are therein Wolf v. 9 S. W. (2nd) Many 350., facts from, of which in their some to be similar to the instant case. is this true of case of State v. Particularly In 267 W. 804. that case still was found on the appel- S. Zugras, from such lant’s farm about 150 yards path leading still residence. was therein decided searched was not constitutional provision providing unreasonable searches and seizures. A con- immunity against commercial life make it social and both difficult stantly changing unsafe to an- exact definition of the word “curtilage.” ^formulate We cannot alike to all modern safely apply early English meaning intent cases. obvious protection against search within the was to citizen give every protection of the house in which he dwells or in which “peaceful enjoyment *3 therewith, business and those connected and does things he works outhouses appurtenances necessary such as gardens, house or that in which the business dwelling comfort domestic This is from the used language by Presiding plain is conducted.” case, which is in in the supra, Morrow part Wolf Judge re- of should not be so above. meaning immediately a failure to the home officious as protect against as to operate stricted a nor so as to make expanded and quietude, of peace disturbers are of differently criminals. definitions “curtilage” refuge stated, from the following: as appear immediately surrounding dwelling-house,

“The enclosed space It has also been de- the same enclosure. ... within land around of small of piece as ‘a fence or enclosure fined in connec- the buildings occupied usually including dwelling-house, either of a the enclosure consisting with the dwelling-house, of the exterior of of a fence and partly fence or partly separate ” Bouvier’s Law Dictionary, this enclosure.’ so within buildings P. 741. 3rd Edition), Yol. (Rawle’s Also: “ around or of ground lying courtyard, piece yard, ‘Curtilage’ fence; a fence included within the same near to dwelling-house, usu- a small of land around dwelling-house, piece or inclosure in connection with the buildings including ally aof fence or of a fence and wholly consist partly inclosure may so within the inclosure.” exterior side buildings partly Yol. Phrases (2nd Series) Words effect to the intent and of the constitutional Giving guar- purpose technical antee search rather than to against any definition of the word that the we are “curtilage,” facts of instant case show search do not an unreasonable or illegal any place constitution and that the evidence ob- tained was received. thereby

Some mention is made in the brief that found in or whiskey search, near the but no such yard said during in the either statement facts or bill of appears any exception. Nor does it either that search was alleged illegal land so connected with home as make it a of same. appellant's part made to establish such con- necessary attempt by appellant No than nection further above. what'’appears any continuance on account of the made application officers, one of the absence W. who Griggs, searching J. the State but who was not attendance court. subpoenaed by in said to be materiality appears application as That the went to appellant’s about follows: searching officers about one-fourth of a of intoxi- found quart mash yard; not those of but those of Frank was found were that were no tracks mash any McConnell and leading residence, as claimed the State to or the appellant’s towards matters are set out some of its witnesses. Other as testified to by appears to affect involved. legal question which do not seem *4 Texarkana, at the of the trial was that this time witness of trial. rail with the is connected wire and by place directly point for appellant’s for and no excuse given No attachment was asked witness there an affidavit from this Neither was failure so. do that witness for trial attached motion new showing to appellant’s his motion continuance. appearing as alleged testify at available under hand to have been near enough that witness was for, witness had although that none such applied attachment what- no excuse have been attached and and might disobeyed process such lack of his non-attendance either for shown being ever Furthermore, action correct. the court’s we thing diligence, truth of the on the probable to pass with discretion vested court is for new record on motion of the entire in the light absent0testimony thereto, is attached the above character no affidavit trial White no abuse of such discretion. there was clearly case in this State, 584; v. Tex. Crim. Cruz v. 100 Tex. Crim. Rep. 188; Rep. Tubb v. 5 S. 150. W. (2nd) do not think We the Court in. erred on charging principals, evidence to raise the issue that enough another appellant acted in the commission of the together offense. alleged Jaggers State, 104 Tex. Crim. Rep. no record, error

Finding is affirmed. judgment

Affirmed. foregoing opinion has the Court of Criminal the Court. ON MOTIONFOR REHEARING. Presiding MORROW, matter only embraced in . The

the motion for rehearing which was not discussed in fully the orig- inal is that in which it is claimed that on the law charging the court principals committed error. The State’s testimony showed presence equipment manufacture of intoxi- The State also introduced circumstances sufficient to connect the with its possession. The introduced to the effect that at a was found equipment on the point appellaiit’s land which joined land to that McDonald, occupied and also intro- duced to the effect that McDonald had stated that he had hauled the still to the it where was found and that he it in before it making whisky day discovered the officers. In view of the testimony mentioned we think the complaint fact that the court charged jury the law principals merit.

The motion is overruled.

Overruled. C. W. Green v. The State.