Welch v. State , 107 Tex. Crim. 101 ( 1926 )

Miller, the Sheriff of Concho County, was called upon by the city marshal of Eden to assist in apprehending some men. Miller had been told by the city marshal that the men he was after were a "tough crew," and if interfered with by the officers they would find themselves at the "smoky end of a forty-one." The officers then went to the place where the automobile of the appellant and his companion was stopped. They separated as they approached the car, and the appellant was standing by the car near the door with his foot on the running-board and talking to one of the men who was drilling a well. Another man was in the car, sitting under the steering wheel. The officers had a warrant to search the car for whiskey. Paris (the city marshal) had the man in the car to get out and when he did so, Paris reached in the car and got a .41-caliber Colt pistol. The appellant and his companion were then arrested by the officers. Paris testified that he suspected the parties of bootlegging and called Miller over the telephone to come and help him arrest the men. Paris, Miller and Gates went to the car, and when Paris made the man get out of the car, he saw the pistol. It was partly behind the seat and half of the pistol could be seen. The witness had seen the appellant earlier on the same night, when he pulled something out of his shirt front and put it in the seat cushion back of him, which the witness took to be a pistol.

The appellant testified that he lived at Eden, and was traveling in an automobile to Houston; that he was near San Angelo when arrested. The issue of traveler was submitted to the jury and decided against the appellant. As stated in the original opinion, the complaints of the charge are not available because of non-compliance with the statutes on procedure. In his motion for rehearing, appellant contends that the information that he had a pistol was illegally obtained and that in consequence thereof the evidence was not admissible. Upon the subject of pistol carrying we have a special statute authorizing an arrest, which reads thus:

"Any person violating any article of this chapter may be arrested without warrant by any peace officer and carried before the nearest justice of the peace. Any peace officer who shall fail or refuse to arrest such person on his own knowledge, or upon information from some reliable person, shall be fined not exceeding five hundred dollars."

The decisions under this article are numerous to the effect that a person unlawfully carrying arms may be arrested by an officer without warrant upon his own knowledge or upon information of some credible person. See Jacobs v. State, 28 Tex.Crim. App. 79, and cases collated in Vernon's Tex.Crim. Stat., 1925, Vol. 1, p. 283.

In our opinion, the provision of the statute mentioned and quoted above was adequate authority for the arrest of the appellant by the officers for unlawfully carrying a pistol. The arrest being authorized by the special statute to which reference is made the testimony of the officers was not inhibited by Art. 727a, C. C. P., 1925, forbidding the use of evidence obtained through an illegal search.

The motion for rehearing is overruled.

Overruled.