Cass v. State

• Decision Date: 22 March 1933
• Docket Number: No. 14624.,14624.
• Citation: 61 S.W.2d 500
• Parties: CASS v. STATE.
• Court: Texas Court of Criminal Appeals

61 S.W.2d 500

CASS v. STATE.

No. 14624.

Court of Criminal Appeals of Texas.

March 22, 1933.

Rehearing Denied June 21, 1933.

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

Bonnie Cass was convicted for burglary of a box car, and he appeals.

Affirmed.

W. E. Martin and Kirby, King & Overshiner, all of Abilene, for appellant.

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

LATTIMORE, Judge.

Conviction for burglary of a box car; punishment, two years in the penitentiary.

The facts support the conclusion of guilt, and we find but one question raised calling for discussion, which may be stated thus: C is on trial for burglary of a box car; after his arrest officers go to the house occupied by C and his wife; she gives her consent without any sort of coercion to search the premises. In the yard behind a barrel is found part of the property taken from said box car. The question raised is: Is testimony of such finding admissible over the objection that the wife cannot waive the husband's constitutional rights against unreasonable search and seizure?

The Fourth Amendment to our Federal Constitution and section 9 of article 1 of our state Constitution use substantially the same language in saying that the people shall be secure against unreasonable searches and seizures in houses, persons, papers, and possessions. It would seem fundamentally sound to say that unless a search, etc., be unreasonable, as that term is defined and understood, same will not violate the constitutional mandate, and since the admissibility of testimony of what is found by such search, etc., is made to depend solely on whether the search was reasonable or not, the decision of such question by any court upon any other reason than that the search is reasonable or not, must be unsound. With profound respect the writer is of opinion that when we try to solve the question here raised upon any such ground as that one person has or has not the right to waive another's constitutional rights, we are entirely away from the issue, and get into trouble at once.

When two or more persons mutually associate themselves in the possession, management, and control of houses, lands, etc., all entitled, and each in the absence of the other, it seems idle to say that the one in possession may exercise every function incident to the business of the group, which would include ingress and egress of all sorts of persons, but that if an officer be permitted to enter and search for stolen property, his entrance and search by full and free consent of the present member of the group, this would be unreasonable, if and when he found stolen property therein which had been stolen by some other of the partners, but which would not be unreasonable if the property found be stolen by the one who had given permission for such search. Such attempted distinctions are without foundation, and seem to get away from and ignore the purpose of the framers of our Constitutions which, as said in Agnello v. United States (C. C. A.) 290 F. 671, was plainly to protect the people from the unreasonable searches and seizures practiced in England under general warrants, and in the colonies under writs of assistance. To hold otherwise would be dangerously near to saying that the absent partner or partners had some vested or constitutional rights in stolen property, entrance to search for which they alone had the right to waive, or else had some right of objection to search when the common houses or lands of the group sheltered or secreted such stolen property which was in some manner excepted from the ordinary and general right of control of the common owner present and in possession.

We are compelled to believe that this strained construction of our Constitution, when invoked in case property be found claimed to have been stolen by some one or more of the absent partners, is beyond the comprehension of the Constitution when fairly construed, and is fundamentally unsound.

In Texas it is statutory that during coverture the separate property of each spouse is under his or her separate care, control, and management, and this, whether it be homestead or other property. Also by statute the community property is equally owned and jointly controlled by both husband and wife, save that in article 4619, Revised Civil Statutes, 1925, it is stated that said property may not be disposed of except by the husband. Nowhere in our statute is the husband given any more right or control over the home or homestead than the wife. He has no more power or dominion to say who may or may not enter the house than she has. In fact and in reason she usually occupies and possesses the house occupied as a home every hour of the day, while the man chiefly uses it as a place to eat and sleep. Ordinarily, she has as much intelligence as he, is as interested in and amenable to the laws as he; she is no longer a slave or a chattel, but her husband's equal and often his superior, and we confess our inability to differentiate as between her right and that of her husband to give legal authority to any person, be he officer or otherwise, to enter and search. If these observations be true, either husband or wife in possession, in the absence of the other, can legally give permission to enter and search the home for stolen property or other proper purpose.

We are not without precedents for this conclusion in the decisions of our own court. In Bannister v. State, 112 Tex. Cr. R. 158, 15 S.W.(2d) 629, 630, the wife was charged with possession of intoxicating liquor for purpose of sale, and it appeared from testimony that consent to enter and search the house was given by the husband out of the presence of the wife. Upholding this and affirming the judgment of guilt against the wife, we said: "If appellant was equally in control and management of the premises with her husband, his consent would suffice to make a legal search had thereunder." In Alejandro v. State, 116 Tex. Cr. R. 325, 31 S.W.(2d) 456, 457, opinion by Hawkins, J., the state's testimony showed that upon permission from the wife in the absence of her husband, the accused in the case, officers searched the house and found a quantity of intoxicating liquor. When the officer was asked to testify to what he found, objection was made on the ground that the wife had no right to give permission to enter. This court said: "We fail to discern merit in the objection," citing Pruitt v. State, 109 Tex. Cr. R. 71, 2 S.W.(2d) 856, in which latter case we upheld the validity of a search upon consent of the wife in the husband's absence, he being on trial. In Traylor v. State, 111 Tex. Cr. R. 58, 11 S.W.(2d) 318, we upheld the admissibility of testimony of what was found upon entry into the house of the accused in his absence, such entry being upon the consent of the wife. In Custer v. State, 117 Tex. Cr. R. 164, 36 S.W.(2d) 504, 505, it was shown that the officers were in appellant's house upon consent of his brother, when they discovered things testified to upon appellant's trial. We held the testimony admissible, and said this was no invasion of appellant's house in violation of the mandates of either Constitution. We also said: "The officers were in no sense trespassers; they were in the house by permission of appellant's brother." See Epple v. State, 112 Tex. Cr. R. 612, 18 S.W.(2d) 625. In Pond v. State, 119 Tex. Cr. R. 306, 45 S.W.(2d) 962, we affirmed a case in which a woman was convicted for possessing intoxicating liquor for the purpose of sale, in a house occupied by herself and a man who she claimed was her common-law husband, he being present when the officers made their search, it being claimed that the search warrant had by the officers should have directed a search of premises in the husband's control, and that same was bad for that it laid control in her.

We see no reason for concluding that if the husband's permission to enter and search would authorize and render legal, testimony which might send his wife to prison as a thief, murderer, or bootlegger, a contrary rule should be announced when the permission to enter is given by the wife, in the absence of her husband.

Appellant cites Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 267, 65 L. Ed. 654. We have carefully examined this authority. Inasmuch as there was no contest made therein on the point here involved, the facts relative thereto were not fully developed, or else not set out in the opinion. We only know therefrom that two revenue officers went, in the absence of the accused, to his house. They told his wife they were revenue officers and had come to search the premises " for violations of the revenue law," and she opened the store, after searching which said officers went into the home of appellant and searched same. The court in stating its conclusion says that these officers came "without warrant, demanding admission to make search of it under government authority," etc. Further the court said: "We need not consider whether it is possible for a wife, in the absence of her husband, thus to waive his constitutional rights, for it is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected." In the conclusion that the search was unreasonable, we think the Supreme Court entirely justified. The holding thus announced plainly limits the application of this opinion as a precedent to cases whose facts, otherwise similar, show coercion, express or implied, on the part of the officers, and this plainly makes said opinion wholly inapplicable to a case on facts such as appear in the one before us. In fact the quoted part of said opinion manifests express refusal to hold in that case what we are asked to here hold. If the Supreme Court of the land had been willing to hold that a wife in possession of the home, in the absence of the husband, had no right to authorize a search of same by officers, no matter how full and fair had...