Arnold v. State

• Decision Date: 23 May 1928
• Docket Number: (No. 11784.)
• Citation: 7 S.W.2d 1083
• Parties: ARNOLD v. STATE.
• Court: Texas Court of Criminal Appeals

7 S.W.2d 1083

ARNOLD v. STATE.

(No. 11784.)

Court of Criminal Appeals of Texas.

May 23, 1928.

Rehearing Denied June 23, 1928.

Appeal from District Court, Angelina County; C. A. Hodges, Judge.

Frank Arnold was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals. Affirmed.

Adams & McAlister, of Nacogdoches, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MORROW, P. J.

The possession of intoxicating liquor for the purpose of sale is the offense; punishment fixed at confinement in the penitentiary for a period of five years.

Appellant conducted a grocery store and resided with his family in a four-room house adjoining the store and connected with it by a little hallway, as the evidence is understood. Possessed of a search warrant, a deputy sheriff and three other officers searched the store and also the dwelling of the appellant. In the store they found a case of empty half pint flasks, and in the dwelling they found six half pints of whisky in bottles, one quart bottle, and some whisky in a gallon jug. On the day that the raid was made, the appellant left his home about 9 o'clock in the morning and went to another town. He did not return until some hours after the raid was made. His wife, after doing her housework (cleaning rooms, etc.), went to see her dressmaker at another town, leaving about 11 o'clock and returning about 30 minutes before the raid took place. In the absence of the appellant, the store was conducted by his brother, Monroe Arnold, who was present at the store at the time of the raid. All of these, that is, the appellant, his wife, and his brother, testified that they had no knowledge of any whisky upon the premises. The appellant and his wife testified definitely that there was no whisky there at the time of their departure and none at the time the appellant returned.

It was the theory of the appellant that if any whisky was found by the officers it was placed there by his cousin, Bernice Barker. It seems that Barker, who resided in Louisiana, had been visiting the appellant for some two or three days and had been drinking. According to Monroe Arnold, on the day of the raid, Barker came to the store under the influence of liquor and told him that he had some liquor and asked that he be permitted to leave it in the store. Arnold refused to consent to this, and Barker left, going through the dwelling. Arnold supposed that Barker would take with him any whisky that he had. Arnold testified that he knew of no whisky upon the premises. A witness, who was engaged in hiring Ford cars, testified that Barker, on the evening after the time of the raid, came to the witness apparently in his "cups" and asked to rent a car. The witness refused, but finally conveyed Barker to a railway station, he stating that he was in trouble and wanted to go home.

The receipt of the testimony of the three officers who searched the store and dwelling of the appellant to the effect that they saw six pints of whisky and some in a gallon jug in the dwelling of the appellant was opposed upon the ground that the search warrant under which they acted was illegal and unauthorized in that it was not predicated upon an affidavit setting forth the facts showing probable cause. In qualifying the bills, the court states that one of the officers testified that the whisky was seen by him before entering the residence. Our reading of the statement of facts leads to the conclusion that the receipt of the testimony could not be upheld upon that ground. It appears perfectly clear from the evidence that the officers entered the store of the appellant for the purpose of searching it; that before entering it, a search warrant had been procured and that the warrant was in the possession of Garrison, who took with him for the purpose of making the search three other officers. They were all acting together, and told the parties in the house that they were acting under a search warrant. The dwelling house and the storeroom were connected. The fact that while searching the store under the warrant one of the officers may have looked into the kitchen of the dwelling and there observed some whisky would not justify the search. They were on the premises by no authority save the search warrant. The case of Steverson v. State (Tex. Cr. App.) 2 S.W.(2d) 453, is analogous. The bills of exceptions disclose the fact that the officers did possess a search warrant; that they acted under a search warrant in making the search; and that the discovery of the whisky was the result of the search. However, the bills fail to show that the search warrant was illegal or informal or that the affidavit supporting it was lacking in any of the requisites which the law demands as a predicate for the issuance of a search warrant. Such requisites are set out in the statutes cited in Chapin's Case, 107 Tex. Cr. R. 477, 296 S. W. 1095. The appellant objected to the evidence mentioned, "for the reason that the search warrant was issued upon an affidavit based solely upon information and belief, stating no facts as a ground for the belief." As the bills appear in the record, this is merely a part of the objection made. In order to support the objection, it would be essential that the record show that in fact the search warrant was issued upon an insufficient affidavit. Such fact could be shown by making the affidavit a part of the bill or by referring to it in the statements of facts if contained therein, or by a certificate of the judge who tried the case that the affidavit was based upon information and belief alone. However, in the present instance, there is not set out in the statement of facts, or otherwise, the affidavit or the search warrant, and this court is informed alone by the recitals in the objection made that the appellant claims the affidavit to be insufficient and the search warrant therefore unauthorized. The ruling of the court implies that the grounds were not tenable. It has often been held that the grounds of objection are not an adequate substitute for a certificate of the judge that the grounds are based upon facts. See Wallace v. State, 100 Tex. Cr. R. 499, 271 S. W. 911; Neely v. State, 100 Tex. Cr. R. 76, 271 S. W. 922; Boyd v. State, 100 Tex. Cr. R. 98, 272 S. W. 134; Gilliam v. State, 100 Tex. Cr. R. 67, 272 S. W. 154; McKee v. State, 100 Tex. Cr. R. 501, 272 S. W. 191; and other cases collated in Vernon's Tex. C. C. P. 1925, vol. 2, p. 403; also Phillips v. State, 104 Tex. Cr. R. 308, 283 S. W. 817; Pierce v. State, 106 Tex. Cr. R. 116, 290 S. W. 1095; Watkins v. State, 102 Tex. Or. R. 219, 277 S....