Blackburn v. State
| Decision Date | 17 February 1943 |
| Docket Number | No. 22392.,22392. |
| Citation | 168 S.W.2d 662 |
| Parties | BLACKBURN v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Knox County Court; J. C. Patterson, Judge.
Jim Blackburn was convicted of possessing whisky and beer for purpose of sale in a dry area, and he appeals.
Reversed and remanded.
Rollie Fancher, of Seymour, for appellant.
Spurgeon E. Bell, State's Atty., of Austin, for the State.
Conviction is for possessing whisky and beer for the purpose of sale in a dry area, the punishment being a fine of $250.
Peace officers of Knox County (admittedly a dry area within the meaning of the Texas Liquor Control Act) searched the appellant's home and premises, and found therein beer and whisky in sufficient quantities to warrant the jury's conclusion under the prima facie evidence rule, Art. 666 — 23a and Art. 667 — 25, Vernon's Annotated Penal Code) that same was possessed for the purpose of sale.
The appellant did not testify as a witness in his own behalf.
Appellant objected to the admission in evidence of testimony showing the result of the search of his premises because the State did not, as a condition precedent to the introduction of said testimony exhibit a valid search warrant authorizing the search. The trial court's qualification to the bill of exception presenting this matter shows that the objection was overruled and that the testimony showing the result of the search was admitted "for the reason that the defendant had assented to the search."
The statement of facts shows that the sheriff, Mr. Cartwright, told appellant that he (the sheriff) had a search warrant and asked if appellant wanted it, and appellant said no, he had no use for the warrant, and told the officers to go ahead and search. Bills of exception numbers one and two both relate to objections interposed when the officers were asked to state what they found as a result of the search, the objection being that no search warrant had been "introduced in evidence." The trial court's qualification to each of said bills shows that the officers were permitted to testify as to the result of the search because appellant had consented thereto. So far as the record shows no search warrant was exhibited, and reliance was had on the claimed consent of appellant to the search.
The officers having told appellant they had a search warrant, his assent to the search under such circumstances is not a waiver of a valid warrant, and cannot be construed as consent to...
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...459; Brown v. State, 166 Tex.Cr.R. 322, 313 S.W.2d 297. See also Vines v. State, Tex.Cr.App., 397 S.W.2d 868; and Blackburn v. State, 145 Tex.Cr.R. 384, 168 S.W.2d 662. There can be no question as to the soundness of each of the above holdings, but such cases have application only where the......
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...S.W.2d 93; Brown v. State, 166 Tex.Cr.R. 322, 313 S.W.2d 297; Henderson v. State, 108 Tex.Cr.R. 167, 1 S.W.2d 300; Blackburn v. State, 145 Tex.Cr.R. 384, 168 S.W.2d 662. See also Ciulla v. State, 434 S.W.2d 948 (Tex.Civ.App.); 11 Tex.Digest, Crim.Law, Sec. 394.5(1); 51 Tex.Jur.2d, Searches ......
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Ortega v. State, 43317
...had a valid search warrant. In the present case, no issue of the existence of a search warrant was raised. In Blackburn v. State, 145 Tex.Cr.R. 384, 168 S.W.2d 662, the officers told the accused that they had a search warrant. When asked if he wanted to see it, Blackburn replied that he did......
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