Bloss v. State, 16921.

• Decision Date: 31 October 1934
• Docket Number: No. 16921.,16921.
• Citation: 75 S.W.2d 694
• Parties: BLOSS v. STATE.
• Court: Texas Court of Criminal Appeals

75 S.W.2d 694

BLOSS v. STATE.

No. 16921.

Court of Criminal Appeals of Texas.

October 31, 1934.

Commissioners' Decision.

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

O. C. Bloss was convicted of possession of intoxicating liquor for the purpose of sale, and he appeals.

Reversed and remanded.

Kirby, King & Overshiner, of Abilene, for appellant.

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; the punishment, confinement in the penitentiary for three years.

Operating under a search warrant, officers discovered in appellant's residence and on his premises a large quantity of alcohol and whisky.

The search warrant was issued and executed on Sunday. The testimony of the officers was objected to on the ground that the search was illegal. It is contended that the search warrant was void because issued on Sunday.

It is well settled in this state that the magistrate, in issuing a search warrant, exercises judicial discretion. Rozner v. State, 109 Tex. Cr. R. 127, 3 S.W.(2d) 441; Ware v. State, 110 Tex. Cr. R. 90, 7 S.W.(2d) 551; Bird v. State, 110 Tex. Cr. R. 99, 7 S. W.(2d) 953; Hunter v. State, 111 Tex. Cr. R. 252, 12 S.W.(2d) 566; Seals v. State, 157 Tenn. 538, 11 S.W.(2d) 879. Courts have no right to pronounce a judgment, or do any other act strictly judicial, on Sunday, in the absence of a permissive statute. Shearman v. State, 1 Tex. App. 215, 28 Am. Rep. 402.

Article 310, C. C. P., reads, in part, as follows:

"A warrant to search for and seize property alleged to have been stolen and concealed at a particular place may be issued by a magistrate, whenever written sworn complaint is made to such magistrate. * * *" (Italics ours.)

"Whenever" is an adverb of time. Its meaning, and the only meaning given to it by lexicographers, is "at whatever time." Words and Phrases, Second Series, vol. 4, p. 1275; Funkhouser v. Spahr, 102 Va. 306, 46 S. E. 378. Substituting for the word "whenever" its proper definition, article 310 authorizes the issuance of a search warrant at whatever time a sufficient written sworn complaint is made to the magistrate. The question is: Is the language employed broad enough to authorize the issuance of a search warrant at any time, and therefore on Sunday?

In adopting the Code of Criminal Procedure, the Legislature expressed the intention to provide measures for preventing the commission of crime, for excluding the offender from all hope of escape, and for bringing to the investigation of each offense all the evidence tending to produce conviction or acquittal. Article 1, C. C. P. To make sure of the attainment of the objects intended, article 23, C. C. P., was enacted. We quote the article: "The provisions of this Code shall be liberally construed, so as to attain the objects intended by the legislature: The prevention, suppression and punishment of crime."

In providing measures for the attainment of the objects mentioned, the Legislature, among other things, enacted statutes for the issuance of criminal process, such as warrants of arrest and search warrants, and imposed upon magistrates and peace officers the duty to preserve the peace within their jurisdiction and to use all lawful means to effect such purpose. Articles 34 and 37, C. C. P. We quote article 34, as follows: "It is the duty of every magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment."

It is the duty of the magistrate to issue process and of the peace officer receiving it to promptly execute it in order that crime may be prevented and suppressed. Manifestly, the attainment of the objects intended by the Legislature would not be complete if the issuance of criminal process on Sunday should be prohibited. In this connection, it is observed that there is no provision in our Code prohibiting the issuance and service of such process on Sunday. At common law, warrants may issue and arrests be made on Sunday. 60 C. J. 1140. Also at common law a search warrant may issue and be executed on Sunday. 60 C. J. 1141. We have held that, in the absence of a prohibitory statute, the service on Sunday of notice to dip cattle is valid. Williams v. State, 89 Tex. Cr. R. 133, 229 S. W. 545. The language of Judge Hawkins in the Williams Case is as follows: "There is a provision in the Civil Statutes (article 1816) providing that no process shall be issued or served on Sunday, `except in certain cases therein mentioned.' The provision just quoted relates to civil process. We find no such provision in our Code of Criminal Procedure relating to criminal process, and in the absence of a statutory provision prohibiting the service of criminal, or quasi criminal, process on Sunday, we are not inclined to hold that such service would not be legal."

When employed, a search warrant is one of the initial steps in a criminal proceeding. Seals v. State, 157 Tenn. 538, 11 S.W.(2d) 879. As in the case of a warrant of arrest, a search warrant is criminal process. Words and Phrases, Third Series, vol. 2, p. 713; Sugar Valley Land Company v. Johnson, 17 Ala. App. 409, 85...