Burke v. State

• Decision Date: 01 June 1938
• Docket Number: No. 19677.,19677.
• Citation: 120 S.W.2d 95
• Court: Texas Court of Criminal Appeals
• Parties: BURKE v. STATE.

120 S.W.2d 95

BURKE v. STATE.

No. 19677.

Court of Criminal Appeals of Texas.

June 1, 1938.

Rehearing Denied October 12, 1938.

Appeal from San Saba County Court; J. B. Harrell, Judge.

Earl Burke was convicted of violating the liquor laws, and he appeals.

Reversed and remanded.

J. Mitch Johnson, of San Saba, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged by complaint and information with a violation of the liquor laws of this State, and his punishment fixed at confinement in the county jail for sixty days.

The record contains nineteen bills of exceptions, many of which it will not be necessary to notice in view of the disposition made of this case.

Appellant's first and main complaint is as to the search warrant under which the sheriff and his deputy operated in searching the residence of appellant wherein they found 24 bottles of Grand Prize beer. In our judgment the search warrant is fatally defective in that it fails to set forth the name of the appellant, whose residence was the subject of the search, the place in such warrant where the person in possession of such residence was to be inserted being left blank, and no name at all inserted therein. It seems that there was some testimony going to show a waiver of such warrant by appellant given by the sheriff, as follows: "When we got to Mr. Burke's home I got out of the car and walked to where he was standing on the gallery and told him that I had a search warrant and wanted to take a look around," and he said "Go ahead." "He understood that I wanted to search his house for intoxicating liquors." This is not sufficient to constitute a waiver of a proper and legal search warrant. We have heretofore held in Jordan v. State, 111 Tex.Cr. R. 83, 11 S.W.2d 323, 324: "They [the officers] asked her [appellant's wife] if she had any objection to a search of the premises being made. She answered, `No, go ahead and search.' * * * We are unable to reach the conclusion that the remarks attributed to appellant's wife, when advised by the officers that they had a search warrant, show that the search was authorized by consent." Also see Arnold v. State, 110 Tex.Cr.R. 529, 7 S.W.2d 1083, 9 S.W.2d 333. We quote from Dixon v. State, 108 Tex.Cr.R. 650, 2 S.W.2d 272, 273: "We are of opinion that one, who is informed by the officers that they have a search warrant under which they propose to search his house, who says nothing further than, `All right; go ahead,' cannot be held to thereby waive irregularities in the search warrant, or to have given his consent to the search without warrant."

That the search warrant was defective seems to be apparent, and, according to the above decisions such defects and irregularities were not waived by appellant. Therefore under Art. 727a, Vernon's Ann. C.C.P., the testimony of the only two witnesses who testified as to the facts was illegally obtained, and leaves us with no factual testimony whatsoever, thus necessitating a reversal of this judgment.

We note some further testimony of the sheriff and his deputy relative to other transactions at an earlier...