Rippey v. State , 86 Tex. Crim. 539 ( 1920 )

Appellant files a vigorous motion for rehearing, attacking, in the first instance, that part of our opinion, wherein we upheld the right of the State to introduce evidence that certain sausage, identified as being taken from the alleged burglarized house, was found in the house of appellant while she was absent, it being urged that the search of her house was without her consent, and without authority of law, and that, therefore, said evidence was inadmissible. That we may be more clearly understood, we will state that when the owner of the alleged stolen property was on the witness stand, and had testified to the loss of certain meat, he was asked by the State, whether or not he had searched the premises of Mrs. Rippey, for his missing hams, shoulders, and sausage. Laying her predicate for objection, appellant had him state that when such search was made, she was not present, and that he did not have a search warrant; and that appellant had been arrested the night before, and was then in jail. Thereupon, she objected to the question and its answer, because the same would be hearsay, and because such search took place in her absence; and further, because it would be compelling her to furnish testimony against herself, and same was not obtained in a legal manner. These objections the court overruled, and the witness testified to finding in appellant's house, certain sausage, encased in a certain kind of cloth covering, tied with a certain knot, all of which witness thought was his property, and a knot tied by himself. As presented before this Court, appellant urges that such evidence was inadmissible, because said sausage was obtained in violation of Sections 9 and 10, of our Bill of Rights, which guarantee to our citizens, security against unreasonable searches and seizures, and also guarantee against being compelled to give evidence against themselves; and, further, appellant objects because the same was in violation of the Fourth and Fifth Amendments of the Federal Constitution.

As setting forth the views of the Supreme Court of the United States, and as authority for her contention, appellant relies on the case of Weeks v. United States, 232 U.S. Rep., 383. We have again examined this, and the other authorities cited, and in view of the limited discussion indulged in by us in the original opinion on this point, we will further refer to them.

The question in the Weeks case, was the right of the Federal officers to withhold from the accused his own private letters and papers, for the purpose of using same as evidence against him, which documents the officers had obtained in a search of his house while he was in custody. Upon his application for an order directing the return of said papers, the Supreme Court of the United States held that said order must be granted, and the papers returned to him. Omitting any discussion of the correctness of that decision as applicable to the facts of that case, we note that it holds directly against appellant, as far as any application is here sought. Differentiating that case, the Supreme Court uses this language:

"Nor is the case one of testimony offered at a trial where the court is asked to stop and consider the illegal means by which proofs, otherwise competent, were obtained — of which we shall have occasion to treat later in this opinion. Nor is it the case of a burglar's tools or other proofs of guilt found upon his arrest within the control of the accused."

Inasmuch as the instant case before us, is of the kind thus distinguished, the Weeks case effectually excludes it.

Further discussing some decisions cited by the Government, the learned court refers to the cases of Adams v. New York,192 U.S. 585; People v. Adams, 176 N.Y. 351, — both being cases in which evidence of guilt obtained by officers searching in the absence of the accused, was held admissible; and apparently approving the doctrine of said cases, the court proceeds as follows:

`"The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of the manner in which the witnesses have possessed themselves of papers, or other articles of personal property, which are material and properly offered in evidence.' This doctrine thus laid down by the New York Court of Appeals and approved by this Court, that a court will not in trying a criminal cause permit a collateral issue to be raised as to the source of competent testimony, has the sanction of so many state cases that it would be impracticable to cite or refer to them in detail. Many of them are collected in the note to State v. Turner, 136 Am. St. Rep., 129, 135, et seq., After citing numerous cases the editor says: `The underlying principle of all these decisions obviously is, that the court, when engaged in the trial of a criminal action, will not take notice of the manner in which a witness has possessed himself of papers or other chattels, subjects of evidence, which are material and properly offered in evidence: People v. Adams,176 N.Y. 351, 98 Am. St. Rep., 675; 68 N.E. 636; 63 L.R.A., 406. Such an investigation is not involved necessarily in the litigation in chief, and to pursue it would be to halt in the orderly progress of a cause, and consider incidentally a question which has happened to cross the path of such litigation, and which is wholly independent thereof.'

"It is therefore evident that the Adams case affords no authority for the action of the court in this case, when applied to in due season for the return of papers seized in violation of the constitutional amendment."

So it is at once apparent that the rule in the Weeks case has no application to a case such as is before us, in which objection was made during the trial that evidence offered was not legally obtained, but was obtained by illegal search and seizure.

If we apply the rule of the Adams cases, approved in the Weeks case, supra, it would be a sufficient reply to appellant's contention to say that the instant case was on trial, and evidence was offered, to which the objection was made that such evidence was illegally obtained, and that the court properly refused to stop the trial and investigate the collateral issue, as to how the evidence was obtained. However, we do not think the rule in the Weeks case applicable from any point of view. There is a vast difference between demonstrative evidence, which consists of those things whose undeniable ownership and property is in the accused, and which are not directly connected with the crime under search, and such evidence when same consists of the finding of stolen property, the weapon or tools used, or other evidence directly tending to identify the crime, or connect the criminal therewith. We might further observe that it is permissible under all our laws, to enter houses to search for and seize stolen property, the same not being an unreasonable search or seizure, and in no sense compelling one to give evidence against himself. When such entry is over objection, same can only be allowed when in accordance with prescribed forms, such as search warrants, etc.; and any person undertaking such entry without color of law therefor does so at his peril, and at risk even of life; but such entry, if without force, is not made penal by any law, and when by reason thereof, the finding of stolen property results, the fact of such finding is provable, and if it affect the accused, he may not avoid this merely by asserting that he gave no consent to such entry.

In the Weeks case the property taken was admittedly the private property of the accused. In the instant case, the property found in appellant's house was not her own, but, on the contrary, while a witness, she expressly disclaimed such ownership, and said that the property was brought to her househ by the witness Hollobaugh.

We have many well settled rules of evidence in this State similar to the one governing the introduction of the evidence objected to, which seem to us to make it no longer an open question; and for this reason we did not discuss it in our original. One arrested and searched may not complain that what was found on his person was used in evidence against him. Jones v. State, 214 S.W. Rep., 322; Renfro v. State, 42 Tex. Crim. 393. Property recently stolen, and found in the possession of the accused, is admissible against him, regardless of whether he was or was not under arrest when the same was found. Burrill's Circumstantial Evidence, 450; Hooton v. State, 53 Tex. Crim. 6; Lynne v. State, 53 Tex.Crim. Rep.. The statements of the accused, while under arrest, which are found to be true, and which aid in establishing his guilt, are admissible under numerous authorities; also, that while under arrest, he may be compelled to place his feet in certain tracks, or a shoe may be removed from his foot and placed in certain tracks, for identification. Thompson v. State, 45 Tex.Crim. Rep.; Guerrero v. State, 46 Tex.Crim. Rep.. Recently after the commission of a crime, evidence of finding matters in appellant's possession, which demonstrate his guilt, is admissible, whether he be under arrest or not. Leeper Powell v. State, 29 Texas Crim. App., 63; Wright v. State, 56 Tex.Crim. Rep..

Appellant also refers to Wharton's Criminal Evidence, Vol. 2, Sec. 518-f, which asserts that some State courts are indifferent to the methods used to obtain demonstrative evidence, but that a different rule obtains in the United States Courts. We observe, however, that Sec. 518-g, of Mr. Wharton's work, referred to, lays down the following rule: "It is not ground for exclusion of an article of demonstrative evidence, that it was taken from the possession of the accused, even though it was forcibly taken from him, or that it was obtained by illegal search and seizure." Many authorities are cited in support of this text. We also quote Section 518-e, of said work:

"ARTICLES TRACED TO THE ACCUSED OR CONNECTED WITH THE OFFENSE, WHEN ADMISSIBLE: — On the same principle as the admission of the instrument or means connected with the offense, to illustrate the same, articles of personal property in the possession of the accused at the time of the homicide or other criminal offense against him, or personal property in possession of the accused at the time and connected with the offense, either to identify the offense, the deceased, or the accused, are properly admissible as a part of the demonstrating and illustrating evidence." Many authorities are also cited in support of this text.

No authorities are cited by appellant, nor do we believe any can be found, which hold inadmissible against the accused, the fact of finding on her premises, and inferentially in her care and control, the substantive evidences of her crime, such as the alleged stolen property.

Ex parte Wilson, 39 Tex.Crim. Rep., is cited by appellant in this same connection. Examining said authority, we note that Mr. Wilson was released by this Court, upon habeascorpus, from confinement, under an order of the District Court holding him in contempt, because he refused to answer a grand jury seeking to compel him to divulge the whereabouts of a certain bill of sale, which disclosure, as admitted by the State's attorney, would have been incriminating to Mr. Wilson.

The Downing case, 61 Tex.Crim. Rep., 136 S.W. Rep., 471, is also cited, and this latter case appears to be one wherein this Court held it erroneous to compel the attorney for appellant, and the appellant's wife to testify against him, and to deliver to the State's attorney, private papers of the appellant. The opinion in the Downing case is based specifically upon the fact that Articles 773, 774 and 775, of our Code of Criminal Procedure, forbids making the wife, or the attorney, in most instances, a witness.

There seems to us no possible dispute as to the correctness of the conclusion reached in either the Wilson or the Downing cases. Neither of said cases discusses the proposition involved in a search for stolen property, or the instruments or tools used, or other demonstrative evidence tending to connect the accused with the offense. In the instant case, appellant did not even make claim of ownership, or right of possession to the alleged property, and while she might have objected to an entry into her house for the purpose of search and seizure until proper legal forms were complied with, yet if stolen property was found in said house, we find nothing in any of the authorities cited which would hold that such evidence was inadmissible.

It is also urged that we erred in holding the evidence sufficient to support the verdict. In this connection, it will be noted that the trial court charged on circumstantial evidence, and that the record shows that appellant was familiar with the premises alleged to have been burglarized; that she was present, and helped put up the sausage, with other meat, when the same was packed away, and knew where it was kept; that some weeks thereafter, the meat was missing from the place where appellant had assisted in placing the same; that she told witnesses, who testified, in substance that she had gone out into the country with Fitzgerald, had gotten the meat, and had been frightened by the sounds she heard, which she stated to one of the witnesses she believed to be Mr. Cantrell shooting at them. It further appears from said record that she stated where she got the meat, and that she knew where the keys were kept; that when this meat was gone, she was going to get some more; and that a part of the meat claimed to have been stolen was found in her house and identified. We think these facts of sufficient weight to justify the jury's verdict.

As to appellant's contention that there was no evidence of a breaking, it will be a sufficient reply to state that if the evidence in the record be true, which is a question for the jury, it appears that appellant herself admitted that on the night in question, she got the keys to the smokehouse, and went and got the meat, and that the owner of the house testified that he kept it locked.

It will not be necessary to convict of burglary, to show that appellant took all of the missing property. It has been held in this State that the finding of a part of recently stolen property in possession of the accused, would support a conviction of taking it all. Jack v. State, 20 Texas Crim. App., 656; Rose v. State, 52 Tex.Crim. Rep.. It has also been frequently held that the fact of possession of recently stolen property, obtained from burglarized premises, and such possession not satisfactorily explained, will support a conviction for burglary. In this case there was such evidence, and also additional testimony of statements amounting to confessions, made by the accused.

Being unable to agree with the contentions made by appellant in this motion, the same will be overruled.

Overruled.