Butler v. State

• Decision Date: 19 November 1947
• Docket Number: No. 23800.,23800.
• Citation: 208 S.W.2d 89
• Parties: BUTLER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 89

208 S.W.2d 89

BUTLER v. STATE.

No. 23800.

Court of Criminal Appeals of Texas.

November 19, 1947.

Rehearing Denied January 7, 1948.

Commissioners' Decision.

Appeal from District Court, Clay County; Louis T. Holland, Judge.

William Waverly Butler was found guilty of the offense of burglary and two prior convictions for like offenses, and he appeals.

Reversed and remanded.

Wallace B. Moore, of Dallas, for appellant.

Clyde Suddath, Co. Atty., of Henrietta, and Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was charged by indictment with the offense of burglary and two prior convictions for like offenses. He was found guilty as charged and his punishment was assessed at confinement in the state penitentiary for life.

Appellant brings forward one bill of exception in which he complains of the action of the trial court in admitting in evidence certain articles discovered on his person and wearing apparel as a result of a search of his person and premises without a search warrant after he had been taken into custody by the officers at his home without a warrant of arrest. The bill discloses that the burglary with which he was charged was committed during the night of December 26, 1946, in Clay County; that the officers ascertained the license number of his automobile on the 27th or morning of the 28th day of December. The bill recites that it was agreed by and between the district attorney and counsel for defendant that at the time of his arrest appellant was not fleeing; that the offense was not committed within the view of the arresting officers nor within the view of any magistrate who told them to arrest the defendant, nor did anyone tell them that the defendant was about to escape; that they did not take him before a Justice of the Peace or any District or County Criminal Court Judge and no complaint had been filed in any Justice Court of Clay County against the defendant.

The court qualified the bill of exception by stating what the officers discovered in the way of drugs, etc., on the floor of the burglarized premises and what they discovered as a result of the search of his person and premises.

The sole question is: Was the evidence given admissible as against the objection urged thereto by appellant that the arrest, the search of his person and his home were illegal?

The uncontradicted evidence shows that the drug store in question was burglarized on the night of December 26, 1946, and some drugs and money taken therefrom; that on Saturday, the 28th day of December, 1946, appellant was arrested at his home in the City of Dallas by Louis Rigler, a Texas Highway Patrolman who was stationed at Grand Prairie, and two city policemen of the City of Grand Prairie; that the officers entered his home, arrested him without a warrant, and searched his person and his home without a search warrant. Appellant, in due time, objected to any evidence discovered by the officers as a result of his arrest and the search of his person and his home on the ground that the same were made without a warrant of arrest and without a search warrant.

There is not any evidence from any source which shows that the officers were authorized under Articles 212, 213, 214, or 215, C.C.P., to arrest appellant without a warrant. In the case of Vinson v. State, 138 Tex.Cr.R. 557, 137 S.W.2d 1048, a question similar to the one presented here was before this Court and Judge Hawkins, in disposing of the same, held the arrest of appellant without a warrant and the search of his home without a search warrant were illegal; that by reason thereof, the evidence obtained as a result of the search was inadmissible. To the same effect is the holding of this Court in the case of Rodriguez v. State, 146 Tex.Cr.R. 206, 172...