Burton v. State

• Citation: 215 S.W.2d 180
• Decision Date: 24 November 1948
• Docket Number: No. 24165.,24165.
• Parties: BURTON v. STATE.
• Court: Texas Court of Criminal Appeals

215 S.W.2d 180

BURTON v. STATE.

No. 24165.

Court of Criminal Appeals of Texas.

November 24, 1948.

Commissioners' Decision.

Appeal from County Criminal Court, Dallas County; Joe B. Brown, Judge.

Floyd Burton was convicted of theft of corporeal personal property over the value of $5 and under the value of $50, and he appeals.

Judgment reversed and cause remanded.

J. P. Moseley, of Dallas, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is theft of corporeal personal property over the value of Five Dollars and under the value of Fifty Dollars. The punishment assessed is confinement in the county jail for a period of 60 days.

The record reflects that at the time of the commission of the alleged offense appellant was employed as a porter by the Pullman Company; that on the night in question, while appellant was on his way home, walking East on Camp Street and carrying a large canvas bag on his shoulder, a city policeman stopped him and inquired of him where he was going and where he had come from. Appellant told him that he was going home. The policeman arrested him without a warrant and searched his canvas bag without a search warrant. The search revealed that the bag contained linens belonging to the Pullman Company which were of the aggregate value of $21.50

Appellant has a number of bills of exception in the record, some of which need not be discussed in view of the disposition we are making of this case. His most serious complaint is that the trial court erred in admitting in evidence over his timely objection the testimony of the arresting and searching officer as to what he discovered by the search of the bag which appellant was carrying at the time of his arrest. He based his objection on the ground that the officer had neither a warrant of arrest nor a search warrant, and appellant had not committed a felony or a breach of the peace within the presence or view of the officer. We think this objection should have been sustained since it appears that the officer arrested appellant on suspicion with the view of searching the bag and ascertaining what it contained.

The arrest of a person on suspicion without a warrant and a search of his person or his premises without a search warrant are not authorized by Arts. 212, 213, and 325, C.C.P. An officer is only authorized to arrest a person without a warrant when the person has committed a felony or a breach of the peace within the presence...