Pena v. State , 111 Tex. Crim. 218 ( 1928 )

Conviction is for transporting intoxicating liquor, punishment one year in the penitentiary.

The motion for new trial was overruled on March 27th and ninety days from that date allowed in which to file statement of facts and bills of exception. The ninety days expired on June 25th. The statement of facts was approved by the trial judge on June 23d but was not filed in the lower court until June 26th, which was one day too late. See Subd. 5, Art. 760, C. C. P. For authorities see Note 44, Art. 760, Vernon's C. C. P., Vol. 3. The statement of facts can not be considered.

A number of bills of exception are found in the record: they were filed in time. All but one have a qualification appended by the trial judge which qualification is shown to have been excepted to by appellant. Under such circumstances the qualifications will not be considered. Dowd v. State,104 Tex. Crim. 480, 284 S.W. 592; Stapleton v. State, 107 Tex. Crim. 596,298 S.W. 578 and authorities therein cited. The bills of exception are sufficiently full to present the point relied on by appellant. From them we learn the following facts: on the night of February 11, 1928, J. H. Deavers, a deputy sheriff, was at the railroad station in the town of Odem when the train arrived there at midnight. He saw appellant get off the train with a suit case; instead of coming up to the depot with the other passengers he went back down the track staying in the shadow of the train. The officer followed him some fifty yards back down the track and upon overtaking him asked what he had in the suit case; appellant replied that he had "tequila"; the officer then told appellant to come back to the depot and "let's see"; after getting back to the depot appellant unlocked the suit case which contained eleven quarts of "tequila." Appellant knew Deavers was an officer. He had no warrant for the arrest of appellant and no search warrant authorizing the search of appellant's suit case. The officer's evidence as to what appellant told him about the contents of the suit case was objected to on the ground that appellant was under arrest when the statement was made, and all evidence as to the contents of the suit case was further objected to on the ground that no "probable cause" existed authorizing the officer's act, and that all the evidence was obtained in violation of Arts. 4a and 727a, C. C. P., which read as follows:

"Art. 4a. It shall be unlawful for any person or peace officer, or State ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law."

"Art. 727a. No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."

We are not aware of any provision of the Constitution of the state or of the United States or of any law of either which was violated by the officer when he followed appellant down the railroad track and inquired what was in the suit case. Up to this point there had been no search of appellant's "person" or "personal possessions." In answer to the officer's inquiry appellant informed him that he had "tequila" in the suit case. The statement was a part of the very illegal transaction — transportation of intoxicating liquor, a felony — which appellant was at that very moment committing in the officer's "presence." The bill of exception recites that the officer testified as follows:

"I don't know whether or not I would have let him run or get away from me — I wouldn't have shot or anything like that. I wouldn't have let him get away after he told me what was in that suitcase. It was not my intention to let him get away from me after that, and I carried him fifty yards with that intention in my mind. After carrying him that fifty yards, I told him to open the suitcase, and he opened it."

Art. 212, C. C. P. reads as follows:

"A peace officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an 'offense against the public peace.' "

Art. 215 Cow. C. P. reads:

"Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer is justified in adopting all measures which he might adopt in cases of arrest under warrant."

It would seem the officer under the facts of this case had the right to arrest without warrant under both of said articles. Before having done anything prohibited by the Constitution or laws the officer was informed by appellant himself that he was at the very moment committing a felony in the officer's presence. The arrest being legal the right to search the suitcase followed.

The only bill not relating to the question already discussed complains of the argument of the district attorney. We think no error is shown. The cases of Young v. State, 92 Tex. Crim. 277,243 S.W. 472 and Gothard v. State, 99 Tex.Crim. R.,270 S.W. 177 to which we are referred announce a correct principle but we fail to see its application to the language employed by the district attorney in the present instance.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.