Battle v. State

• Decision Date: 12 January 1927
• Docket Number: (No. 10505.)
• Citation: 290 S.W. 762
• Parties: BATTLE v. STATE.
• Court: Texas Court of Criminal Appeals

290 S.W. 762

BATTLE v. STATE.

(No. 10505.)

Court of Criminal Appeals of Texas.

January 12, 1927.

Appeal from District Court, Harrison County; P. O. Beard, Judge.

R. Battle was convicted of unlawfully transporting intoxicating liquor, and he appeals. Affirmed. See, also, 279 S. W. 842.

Scott & Casey, of Marshall, and Scott, McLean & Sayers, of Fort Worth, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

MORROW, P. J.

The offense is unlawfully transporting intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

In bill of exceptions No. 3 complaint is made of the receipt of the testimony of officers Glasscock and Ezell to the effect that upon the search of the appellant's automobile it was found to contain 205 bottles of whisky.

Opposing the legality of the receipt of the testimony of the officers in question, appellant relies on article 1, § 9, of the Bill of Rights, forbidding unreasonable searches and seizures without probable cause supported by oath or affirmation, and on chapter 149, Acts of 39th Leg., which reads thus:

"It shall be unlawful for any person or peace officer, or state ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law."

And chapter 49, acts of the same session, which reads:

"No evidence obtained by an officer or other person in violation of any provision of the constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on trial of any criminal case."

In article 690, P. C. 1925, it is declared that any automobile used for the unlawful transportation of intoxicating liquor is a public nuisance, and any automobile used in the presence or view of a peace officer of this state for the unlawful transportation of intoxicating liquor shall be seized without a warrant. This article, construed in connection with the provision of the Constitution forbidding searches and seizures without probable cause, is, in our judgment, sufficient authority to sanction the receipt in evidence of the testimony showing the result of the search in the present case, provided the search was made upon probable cause, that is to say, upon "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Landa v. Obert, 45 Tex. 539.

In the case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, it is said:

"On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid."

It is also said:

"It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on a chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search."

And further:

"The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile...