Balch v. State, 19474.

Citation115 S.W.2d 676
Decision Date03 March 1938
Docket NumberNo. 19474.,19474.
PartiesBALCH v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from Johnson County Court; J. P. Seroyer, Judge.

Bessie Armstrong Balch was convicted of possessing intoxicating liquor for the purpose of sale in dry territory, and she appeals.

Reversed and remanded.

Myres & Myres, of Fort Worth, for appellant.

R. L. Crosier, Co. Atty., of Godley, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is possession of intoxicating liquor for the purpose of sale in a dry area; the punishment, a fine of $100 and confinement in jail for sixty days.

Operating under what they thought to be a sufficient search warrant, officers went to appellant's private residence for the purpose of making a search for intoxicating liquor. Two of the officers went to the back door. At this juncture we quote from the testimony of one of said officers, as follows: "I didn't break in. Davis and I went to the back door, and Davis pushed in the door." After gaining entry in the manner mentioned, the officers told appellant they had a search warrant. We quote from the testimony of one of the officers at this point, as follows: "On that particular night when we searched the premises of Bessie Armstrong Balch, the defendant in this case, we told her we had a search warrant, and she told us she didn't want to see it, and told us to go ahead and search." As a result of the search, the officers discovered, in appellant's bedroom, a little more than a quart of whisky.

Appellant resided at 304 Robbins street in Cleburne, Tex. In the affidavit and search warrant the premises were described as follows: "302 East Robbins street in Cleburne, Johnson county, Texas." It was averred in the affidavit and warrant that the premises were in the possession of Bess Armstrong. Appellant objected to the testimony of the officers touching the result of the search on the ground that the warrant did not authorize a search of the premises in the possession of the appellant at 304 Robbins street. It appears from the testimony that No. 302 Robbins street was a vacant lot.

Among other things, the statute requires that the affidavit and search warrant contain the name of the "person accused of having charge of the suspected place, if there be any such person, or, if his name is unknown, that it describe him with accuracy, and direct him to be brought before the magistrate." Article 316, C.C. P. Obviously, the names Bessie Armstrong Balch and Bess Armstrong are not the same. The officers not having a warrant authorizing the search of appellant's premises, objection to the reception of their testimony touching the result of the search should have been sustained. See Ollison v. State, 112 Tex.Cr.R. 354, 17 S.W.2d 62. Again, the officers had no warrant authorizing the search of premises at 304 Robbins street. In Cornelius on Search and Seizure, p. 320, it is said: "Where the premises sought to be searched are described by a certain street number, obviously such a description will not authorize a search of some other street number. * * *"

The officers endeavored to justify the search on the ground that appellant gave her consent. It has been observed that after the officers had pushed in her back door and informed her that they had a search warrant appellant told them she did not care to see the warrant, and to go ahead and search. We are of opinion that the language attributed to appellant is not sufficient to constitute a waiver. In Monroe v. State, 110 Tex.Cr.R. 274, 8 S.W.2d 133, it is shown that the officers informed the accused that they had a search warrant. After being so informed, he told the officers to go ahead and search. In holding that consent was not shown, this court, speaking through Judge Lattimore, used language as follows: "We do not believe that one who is informed by the officers that such officers are in possession of and armed with a search warrant, who then...

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