Adams v. State

• Decision Date: 05 April 1939
• Docket Number: No. 20344.,20344.
• Citation: 128 S.W.2d 41
• Parties: ADAMS v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W.2d 41

ADAMS v. STATE.

No. 20344.

Court of Criminal Appeals of Texas.

April 5, 1939.

Rehearing Denied May 17, 1939.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Fred Adams was convicted of theft of property over $50 in value and he appeals.

Affirmed.

Reid & Reid, of Abilene, for appellant.

J. R. Black, Dist. Atty., of Abilene, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for theft of property over fifty dollars in value, punishment assessed being two years in the penitentiary.

On July 28, 1938, Allen Hatchett was working at an excavation project in Abilene. He had in his pocket-book $77 which he left in his trousers pocket when he changed into his work clothes. The money was gone when he quit work. Hatchett was in the habit of making a note of the serial number of the bills which came into his possession, and had made a memorandum on the back of an envelope of the serial numbers of his bills up to the amount of $63. He reported the theft to the officers, who took the serial numbers. Prior to the day of the theft appellant had been working on the excavation project but was not working that day. In the investigation someone reported that appellant had been seen on the day of the theft about the place from which the money was taken. This information was conveyed to the officers. Some twenty hours after the theft was discovered appellant was arrested and $35 in $5 bills were found in his shoe, five of which bills bore serial numbers corresponding with those on five bills of that denomination which had been stolen.

Objection was interposed to the testimony of the officers as to finding the money in appellant's shoe, and the comparison of the serial numbers, and to the introduction of the money thus found, on the ground that the arrest of appellant was illegal and therefore that the contemporaneous search was not authorized. The jury was retired and the trial judge investigated the question in the absence of the jury. The objection was overruled, which ruling is the basis of several bills of exception which may be considered together. It was developed from the testimony heard by the trial judge that the officers had no warrant of arrest for appellant and sought none although they had been looking for him since shortly after the theft was reported. At the time appellant was observed near the scene of the theft no suspicious conduct on his part was noted. Some witness simply saw him near the place where the excavating was being done and reported that fact to the officers. They knew appellant had previously been convicted for robbery, and had been investigated upon theft charges, and had frequently been arrested by the police and that he bore a bad reputation. It is apparent that the officers suspected him at once upon learning that he had been in the vicinity of the theft. He and another party who had also been seen near the place of the theft were both arrested. The other party was released when none of the stolen money was found in his possession. The officers testified that appellant would also have been released if the search of him had been fruitless. When arrested appellant was in the courthouse. There had been no report that he was about to escape, and his conduct did not indicate any such intention on his part. Without discussing them it is sufficient to say that the evidence excludes the right to arrest appellant without a warrant under the provisions of articles 212, 213, 214 and 215 of the Code of Criminal Procedure. It is the State's contention that the arrest and consequent search was authorized under art. 325, C.C.P., which is 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."

It is clear that the officers "believed", or at least were suspicious, — perhaps the last word is more accurate — that appellant had stolen the money, such belief or suspicion being predicated alone upon appellant's bad reputation and presence in the vicinity where the theft occurred. In Luera v. State, 12 Tex.App. 257, parties were pursuing accused in the "belief" that he had stolen a horse. The court gave in charge to the jury what is now Art. 325, C.C.P., without any explanation thereof. This court in discussing the matter said: "But it [the charge in question] was given to the jury without explanation or qualification, and, standing alone as it does, was calculated to mislead the jury, and cause them to believe that the deceased and his brother, upon the mere belief on their part that the defendant had stolen a horse, had the legal right, without warrant, to pursue and take him dead or alive, and that he had no right to resist any attack they might make upon him. Such is not the law, and the facts of this case did not call for, or justify the charge as given."

It appears from the above holding that "belief" alone is not sufficient. The right of an officer or individual to act under said article must of necessity turn on the construction of the words "there must, however, be reasonable grounds to suppose the property to be stolen." The question involved was considered in Hepworth v. State, 111 Tex.Cr.R. 300, 12 S.W.2d 1018, 1019, and the opinion expressed that the term "reasonable grounds" meant practically the same as "probable cause" which would authorize a search without warrant. It was said: "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...