Chapman v. State , 117 Tex. Crim. 150 ( 1931 )

A deputy sheriff was suspicious that appellant was violating the liquor law. He saw in appellant's car between the seats a bulk of something wrapped in a quilt. Appellant denied the officer's request for permission to search the car, whereupon the officer said he would take charge of the car and hold it, and told appellant to stay away from the car. Appellant was not in the car at the time and was not under arrest. The deputy telephoned for the sheriff.

Appellant predicates his motion for rehearing upon two propositions. First, that the deputy sheriff was without information amounting to probable cause, and that his act was an unauthorized seizure of the car. Second, that this being true, then any act or word of appellant in connection with the car or contents while it was being so unlawfully held was not provable against him. If the correctness of the first proposition be conceded it does not follow that under all circumstances the second proposition is sound, unless we have fallen into error in prior decisions. The deputy detailed the following incident which occurred before the sheriff arrived. "The defendant made a request of me while I was there waiting for the sheriff: He asked me to let him get into the car and drive it out of town and break the whisky. He says: 'You have got me; I want to take the whisky out of town and break it.' He says, 'You have got me,' and he wanted to take it out and away."

Under several cases hereafter cited the above incident would have authorized the deputy to then search the car. He did not do so. After the foregoing request was refused appellant came to the car with a hammer and began breaking containers which were in the car, and continued until he was compelled by the deputy to quit. Whisky from the broken containers ran out of the car. The deputy sheriff never got in the car until the breaking of the containers occurred, after which he sat in the car until the sheriff arrived. An examination or search of the car after the sheriff arrived revealed two sacks with five half-gallon jars of whisky in each sack, three of the jars having been broken.

Upon the facts this case is very similar to Carter v. State, 113 Tex.Crim. Rep., 22 S.W.2d 659. There the officer had information but not sufficient to amount to probable cause for search of Carter's car; the officer got in the car and directed Carter to drive around on another street. In answer to a question from the officer Carter said he had a gallon of whisky; a search of the car revealed this to be true. It is admitted that the officer took Carter into custody without authority, and that he would have had the right to oppose the arrest. Instead of doing that, or remaining silent, which he could have done, he told the officer whisky was in the car; although under arrest his statement was res gestae, and this court held that the officer was within his rights in searching the car because Carter's statement showed him to be guilty at that very time of violating the law in the officers' presence. In the case now before us appellant might have remained silent and inactive. He did neither. By his words he admitted the presence in the car of whisky which he desired to take away and destroy; by his acts he demonstrated its presenec, breaking containers and letting the contents pour out. Authorities other than Carter's case which we deem in point are Young v. State, 115 Tex.Crim. Rep., 27 S.W.2d 801; Owens v. State, 112 Tex.Crim. Rep., 13 S.W.2d 837. Cases involving somewhat the same principle are Pena v. State, 111 Tex. Crim. 218,12 S.W.2d 1015; Elms v. State, 114 Tex. Crim. 642,26 S.W.2d 211; Law v. State, 115 Tex. Crim. 47,27 S.W.2d 174; Mireles v. State, 114 Tex. Crim. 6,23 S.W.2d 727.

The motion for rehearing is overruled.

Overruled.