Balch v. State , 134 Tex. Crim. 327 ( 1938 )

The State, through the Hon. R. L. Crosier, County Attorney of Johnson County, files a motion for rehearing, asserting that the evidence shows a search made with appellant's consent, and insisting that such position is supported by Hogland v. State, 124 Tex.Crim. Rep., 62 S.W.2d 137, and Hall v. State, 105 Tex.Crim. Rep., 288 S.W. 202. In the case first mentioned officers met Hogland on the road before reaching his premises and upon being advised that they had a search warrant he told them they needed no warrant, to go ahead and search. In Hall's case it is shown that he lived on a farm consisting of about 100 acres upon which was a residence, barn and a number of outhouses. The officers went upon the premises and informed him they had a search warrant, whereupon he told them to go ahead and search anywhere they wanted to, that they needed no search warrant. In the present case the officers, acting under the defective warrant, pushed the door to appellant's house open and were on the inside before anything was ever said to appellant about them having a search warrant. There was nothing else she could say but "Go ahead and search." They had already effected an illegal entry into her house. The claim that she had at former times told the officers they needed no warrant to search her place was not relied on by them, else why procure a warrant for the instant search?

We think the two cases mentioned wholly unlike the present case and can not agree that the holding in our original opinion herein overruled in effect those named.

The State's motion for rehearing is overruled.