Minor v. State , 153 Tex. Crim. 242 ( 1949 )

GRAVES, Judge.

The offense is burglary. The punishment assessed is confinement in the state penitentiary for a term of two years.

The record reflects that on the night of November 14, 1948, between the hours of 1:30 and 3:00 a. m., the cafe of David Bower, located near Love Field in the city of Dallas, was burglarized and a slot machine was taken therefrom. About the time of the burglary, two city policemen were patrolling that area. When they passed along the street near the cafe, they noticed an automobile parked in the driveway of the cafe. They drove a short distance to an intersection of another street, turned off the lights on their car, and then turned around, at which time they noticed a man run from the cafe, enter the parked car and hurriedly drive away. They pursued the fleeing automobile which, according to the speedometer of the police car, was at one time traveling 80 miles per hour. They finally overtook the fleeing automobile after it had slipped into a ditch along the side of the highway. They arrested appellant and his companion, Wesley Bentley, outside of the city limits fo Dallas and searched their car without a warrant of arrest or a search warrant. The search of the car revealed a slot machine, a hammer, a bolt cutter, a tire tool, and an electrical conduit.

The owner of the cafe was notified of the burglary, and he immediately went to his cafe and found that the padlock on the front door had been cut; that the building had been entered, and that a slot machine was missing. He identified the slot machine found by the policemen in the car in which appellant and his companion fled from the cafe in question.

Appellant did not testify but proved by one, Clifton Barlow, that he (Barlow) loaned his car to appellant on the night in question; that the tools found by the policemen in the automobile belonged to him; that they had been in the car for some time.

Appellant brings forward two complaints by separate bills of exceptions. These bills may well be considered and disposed of together because they involve the same legal questions, that is, whether or not the policemen had a legal right to arrest him outside the city limits without a warrant and search his automobile.

Appellant does not claim that he did not violate the speed law by driving the automobile on the streets of the city and on the highway at night at a rate of speed in excess of 55 miles per hour, to-wit: 80 miles per hour. His contention seems to be that although he violated the speed law, the city policemen were not authorized by law to arrest him outside the city limits, notwithstanding Sec. 153, Art. 6701d, Vernon’s Ann. Civ. St., expressly authorizes the arrest without warrant of any person found committing a violation of any provision of this act. Art. 803, P. C., also authorizes the arrest without warrant of any person found committing a violation of any provision of the preceding articles of this chapter. Therefore, under the facts of this case, the officers had ample authority to arrest appellant for a violation of the speed law without Warrant within the city, but the paramount and controlling issue is, did the city policemen have a legal right to arrest him beyond the city limits and search his automobile? If so, then the evidence found in the automobile as a result of a search thereof became admissible on his trial for burglary, otherwise not, since Art. 727a, C. C. P., prohibits the use of any evidence obtained in violation of any provision of the constitution or laws of the State of Texas, or of the Constitution of the United States.

Article 999, R. C. S., 1925, defines and sets forth the duties of the chief of police of a city and therein gives him “like power with the sheriff of the county to execute warrants * * *. It shall be his duty to arrest, without warrant, all violators of the public peace * * *. In the prevention and suppression of crime and arrest of offenders, he shall have, possess and execute like power, authority, and jurisdiction as the sheriff.”

The question then arises, what is the jurisdiction of the sheriff? He is a peace officer and is in the same category as a city marshal and a policeman. Art. 36, C. C. P. It is his duty to preserve the peace and arrest all offenders, and when authorized by the Code, he shall interfere, without warrant, to prevent and suppress crime.

It is shown that under a city ordinance of Dallas, evidently passed under authority of Art. 214, C. C. P., appellant was found in a suspicious place and under circumstances rendering him susceptible to arrest without the presence of a warrant therefor.

The facts show that two city policemen of Dallas, while cruising through the city at about 3:00 o’clock in the morning, passed a cafe at 5108 Maple Street. They noticed a car parked in close proximity to this cafe which was closed at such time. Becoming suspicious thereof, they turned off their lights and turned around at the end of the block, whereupon a man came out of the cafe, got in the car and started rapidly away, skidding the tires. The policemen started after such car and followed the same at a high rate of speed through many streets of the city, sometimes reaching a speed of 80 miles per hour. Eventually, appellant and his companion skidded their car into a ditch and were then apprehended by the officers. Upon a search of the car, the officers found certain tools that could be useful in a forced entry to a building, as well as a certain slot machine, numbered 317,117, which it was later shown to have come out of this cafe in a burglarious entry. The point at which this chase terminated was about one mile outside of the city limits of Dallas, the race having continued for some twelve miles.

That the action of such officers was legal when they endeavored to arrest without warrant these men at the cafe will doubtless be conceded by virtue of the city ordinance; and again, when appellant took off in his car and increased his speed to an unlawful one; and again, these officers had a further right to arrest him without a warrant. Art. 803, P. C. See Scott v. State, 134 Tex. Cr. R. 193, 114 S. W. (2d) 565; Linthicum v. State, 134 Tex. Cr. R. 608, 116 S. W. (2d) 714, and many cases there cited.

The crucial point herein is, did the arresting peace officer, being policemen, have authority to finally complete the arrest at a point where the fleeing parties had passed out of the city and over its boundary, or, in other words, does the ancient ecclesiastical doctrine of sanctuary apply to such action upon their part?

It should be remembered that after the flight began, appellant and his companion were never out of the sight of the pursuing officers; that their arrest without warrant was lawfully initiated on the ground of suspicion; that upon their precipitate flight an additional right arose to arrest without warrant on account of their excessive speed which continued until it resulted in their apprehension and the finding of this recently stolen property outside the city limits. Or, in other words, when in legal and immediate pursuit of one suspected of and actually in violation of the law, shall a policeman in pursuit of such evildoer, stop in such immediate pursuit and allow the suspected one to pass over the line and defy such peace officers to take him into custody, and in the event of such malefactor being reduced to arrest, was such detention illegal and any evidence obtained therefrom illegally obtained and violative of the statute ?

Our supreme court has written on this matter many years ago in Newburn v. Durham, et al, 88 Tex. Rep. 288, 31 S. W. 195, and therein laid down the doctrine that by virtue of our statutes the chief of police or city marshal has the same jurisdiction as the sheriff of the county in the prevention and suppression of crime. This statement is also found in Art. 999, R. C. S.

It may be of interest to show who are peace officers, and we, therefore, quote Art. 36, C. C. P., as follows:

“The following are ‘peace officers:’ the sheriff and his deputies, constable, the marshal or policeman of an incorporated town or city, the officers, non-commissioned officers and privates of the State ranger force, and any private person specially appointed to execute criminal process.”

The duties and powers of a peace officer are shown by Art. 37, C. C. P., which reads as follows:

“It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose, he shall use all lawful means. He shall, in every case where he is authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime. He shall execute all lawful process issued to him by any magistrate or court. He shall give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to believe there has been a violation of the penal law. He shall arrest offenders without warrant in every case where he is authorized by law, in order that they may be taken before the proper magistrate or court and be tried.”

Undoubtedly these policemen were within the law when they initiated their effort to take appellant into their custody, and it should be evident that they were in process of a legal arrest in the beginning; and further, that another offense arose and an additional right to take appellant into custody came into being when he attained such a great speed on the streets and highways. Then the attempted arrest having been lawful, shall we say that because of excessive speed the wrongdoer reached a point over the city corporate line that the authority rightfully in being to arrest culminated in the midst of its being exercised? We cannot think so. When the right existed and was being exercised, the fact that such arrest was not culminated within the confines of the city should not keep the same from being a lawful detention. The statute above quoted says that a policeman is a peace officer. Art. 803, P. C. says: “Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of the preceding articles of this chapter.” The preceding chapter is commonly called the “road law” and prohibits an excessive speed.

What we are holding herein is that where a police officer has a right to arrest without warrant for an offense committed within the confines of his city and initiates a pursuit of the malefactor, being in immediate pursuit, he can continue such pursuit, although, such continuance leads him outside the corporate limits of the city, if necessary, his rights being the same as those of the sheriff in such event.

Therefore, we hold that the peace officer had the same power as the sheriff relative to his jurisdiction and could carry out his intended arrest of a person whom he was directly pursuing for an infraction of the law in such officer’s presence.

This holding disposes of appellant’s objections to the introduction of the matters found in his car. The arrest being lawful, the search of the car was also lawful.

The judgment of the trial court is affirmed.