Greenwood v. State , 110 Tex. Crim. 478 ( 1928 )

The offense is manufacturing intoxicating liquor; the punishment confinement in the penitentiary for two years.

Armed with a search warrant officers went to an outhouse on a farm where they arrested appellant while engaged in the act of manufacturing whiskey. The door of the house was open and the officers saw appellant, a still, mash and whiskey through the open door before entering the house. They entered the house, arrested appellant and made a search. At the time of his arrest appellant said: "Well, you got me. I thought that I might be able to get rid of this batch before you came; I knew you were coming."

The affidavit for the search warrant was made upon information and belief and no grounds showing probable cause were exhibited therein. Under the authority of Chapin v. State,296 S.W. 1095, the search warrant was invalid. Appellant objected to the testimony of the officers touching the result of the search on the ground that under Article 727a C. C. P. the evidence obtained by the illegal search could not be properly admitted. Several bills of exception presenting the question are brought forward. To each of said bills is appended a qualification by the court as follows:

"That the proof showed that the house in question was an outhouse or cotton house on a farm and not a private residence and that the defendant did not reside there. That the testimony was not admitted based on the search warrant, but on the testimony of the officers, that they saw the still in operation and the mash and whiskey through the open door before entering the house or before making any search."

The record discloses that the officers saw the still, appellant, the mash and barrels through an open door and that appellant was sitting near some jugs and the still. In the state of the record it is not necessary to discuss the question of the defective search warrant and the applicability of Article 727a, supra, as appellant was committing a felony in the presence and view of the officers.

One who commits a felony in the presence or view of an officer may be arrested without a warrant. Article 212 Cow. C. P. 1925; Moore v. State, 294 S.W. 550; Hodge v. State,298 S.W. 573.

Persons lawfully arrested while committing crime may be contemporaneously searched and the place where the arrest is made may also be contemporaneously searched for the purpose of finding and seizing the things connected with the crime, its fruits and the means by which it was committed. See Hodge v. State, supra, and authorities cited. The arrest of appellant being justified, the search of the house was legal. Hence the evidence objected to was properly admitted.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.