Hepworth v. State , 111 Tex. Crim. 300 ( 1928 )

Offense, felony theft; penalty, four years in the penitentiary.

Appellant with two lady companions visited the Marizon store in Amarillo on October 12, 1927, at about 11 o'clock A. M. They departed and shortly after their departure dresses belonging to the store were missed. The next morning Officer Miller had reported to him that a man fitting the description of appellant was on the streets of Amarillo with a bunch of goods and that he was carrying a parcel under his arm supposed to be the dresses stolen the day before. Finding appellant on the street, Officer Miller placed him in custody without either a warrant of arrest or search warrant and found in his possession five dresses belonging to the Marizon store and clearly identified as their property.

The chief contention of appellant relied on for reversal is the reception of this officer's evidence regarding what was found in possession of appellant. Claim is made that the arrest being illegal, the evidence obtained by reason of same was inadmissible and its reception in evidence inhibited by the terms of our recently enacted search and seizure statute. The trial court admitted the evidence upon the mistaken theory that the officer had been informed by a credible person that a felony had been committed and that the offender was about to escape. Under the terms of Art. 215, C. C. P., this authorized an arrest without a warrant if the predicate therein stated was present. All of appellant's propositions revolve around this mistaken theory and relate chiefly to the insufficiency of the evidence to support any such conclusion. Both the trial court and counsel for appellant have apparently overlooked Art. 325, C. C. P., reading as follows:

"All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay."

Under the express terms of this statute it was the right, as well as the duty, of the officer to arrest appellant and recover the stolen goods. The legal right to arrest generally carries with it the right to make a search without a search warrant. Levine v. State, 4 S.W.2d 553, and authorities there cited. Art. 325, supra, recently received construction by the Supreme Court of this State in the case of Henderson v. U.S. F. G. Co., 298 S.W. 404. This authority contains the following language:

"By virtue of article 325, all persons have a right to prevent the consequences of theft, not only by seizing the property which has been stolen, but by arresting the offender. Moreover in attempting to do these things authorized by this article, persons so acting would not be guilty of false imprisonment, should there be reasonable ground to suppose the property stolen, and the party taken to be the offender, notwithstanding it should thereafter transpire that the property was not stolen, and that the person taken was not a thief."

This article has uniformly been held to give the right of arrest without a warrant. Morris v. Kasling, 79 Tex. 141; Porez v. State, 29 Tex.Crim. Rep.; Smith v. State, 13 Tex.Crim. App. 507; Childress v. State, 107 Tex.Crim. Rep.. It is a wholesome statute designed to give protection from thieves, and we have neither the inclination nor the legal right to nullify its salutary provisions by declaring its operation to be controlled by the terms of the search and seizure law, enacted long after Art. 325 and which neither expressly nor by necessary implication repeals it in our opinion.

Bill of Exception No. 2 raises the question of an error of the Court in refusing to sustain appellant's challenges to certain jurors. It appears from this bill that appellant was under indictment in another case and that three of the jurors had an opinion as to the guilt of the appellant in such case. Appellant's bill is qualified by the Court to show that such jurors on their voir dire showed conclusively to have no bias in favor of or prejudice against defendant or his co-defendants in the instant case, nor did they have any opinion as to the guilt of the appellant in this case. We are bound by the Court's qualification and from same we conclude that the jurors complained of were not disqualified.

Such other questions as have been sufficiently raised do not in our opinion show any error and their importance does not seem to justify discussion. We deem the evidence sufficient.

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.