Chapin v. State

• Decision Date: 22 June 1927
• Docket Number: (No. 10670.)
• Citation: 296 S.W. 1095
• Parties: CHAPIN v. STATE.
• Court: Texas Court of Criminal Appeals

296 S.W. 1095

CHAPIN v. STATE.

(No. 10670.)

Court of Criminal Appeals of Texas.

June 22, 1927.

Appeal from District Court, Shackelford County; W. R. Ely, Judge.

Roy Chapin was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals. Reversed and remanded.

W. E. Martin, of Abilene, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles., Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is the possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for one year.

In the indictment there were two counts, one charging the unlawful sale of intoxicating liquor; the other the unlawful possession. The first count was not submitted to the jury. The verdict rests upon the second count; that is, the possession of intoxicating liquor.

Upon executing a search warrant, officers discovered in the private dwelling occupied by the appellant about a gallon of whisky. The appellant's abode was a tent, but was none the less a private dwelling. Penal Code 1925, arts. 1391 and 1395; Hipp v. State, 45 Tex. Cr. R. 200, 75 S. W. 28, 62 L. R. A. 973; Hooper v. State (Tex. Cr. App.) 105 S. W. 816; Favro v. State, 39 Tex. Cr. R. 452, 46 S. W. 932, 73 Am. St. Rep. 950.

The state relies upon the testimony of the officers showing the possession of the liquor mentioned and the statute making the possession of more than one quart of intoxicating liquor prima facie evidence of guilt. Article 671, Pen. Code 1925. The admissibility of the testimony showing the result of the search is challenged upon the ground that it was obtained in violation of the provisions of the Constitution of this state and of the United States, wherein it is declared that no search warrant shall issue "without probable cause, supported by oath or affirmation." See article 1, § 9, Const. of Texas (Fourth Amendment to the federal Constitution).

Appellant relies upon the statute of this state penalizing an illegal search. See article 4a, C. C. P. 1925, and article 727a, C C. P. 1925, declaring that evidence obtained in violation of the Constitution and laws of this state or of the United States shall not be received in any criminal case. In the instant case, the search warrant was issued upon the affidavit of two persons stating that "the affiants have reason to believe, and do believe, that in the house and premises described intoxicating liquors are kept and sold in violation of law." Exception from unreasonable search is a cherished right, which the makers of the Constitution and the laws have been zealous in guarding and the courts in preserving. A search without probable cause is unreasonable. The search, without warrant, of persons and vehicles has been sanctioned by lawmakers and courts upon the ground of necessity. Such sanction, however, is withheld, unless, in advance of the search, there be evidence of facts showing probable cause. See Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 763; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. So, the search without warrant of a person and place made contemporaneously with a lawful arrest is permissible. See Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145. But to search a private dwelling occupied as such for contraband property such as intoxicating liquor, the possession of a search warrant legally issued is imperative. This can only be had in accord with the Bill of Rights (article 1, § 9, Const. of Texas), saying:

"No warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."

Before our Constitution was adopted, the term "probable cause," as embraced in the federal Constitution, had a fixed meaning in the courts of other jurisdictions as well as in our own. The Supreme Court of this state defined it thus:

"A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Landa v. Obert, 45 Tex. 539.

That belief alone is not "probable cause" is illustrated by many judicial decisions and expressions of text-writers. Among them are the following:

"And the law in requiring the showing of reasonable cause for suspicion intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well-founded; for the suspicion itself is no ground for the warrant except as the facts justify it." Cooley's Const. Limitations (6th Ed.) p. 368.

"The inviolability of the accused's home is to be determined by the facts, not by rumor, suspicion, or guesswork. If the facts afford the legal basis for the search warrant, the accused must take the consequences. But equally there must be consequences for the accuser to face. If the sworn accusation is based on fiction, the accuser must take the chance of punishment for perjury. Hence the necessity of a sworn statement of facts, because one cannot be convicted of perjury for having a belief, though the belief be utterly unfounded in fact and law." Veeder v. United States, 252 F. 414, 164 C. C. A. 338.

From an opinion of the United States Supreme Court we take the following:

"The information upon which the search warrant was issued states only that affiant `has good reason to believe and does believe the defendant has in his possession' such intoxicating liquors, instruments and materials. The warrant clearly is bad if tested by the Fourth Amendment and the laws of the United States." Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. ___.

Many precedents are found declaring invalid a search warrant issued upon an affidavit stating that the "affiants had reason to believe and did believe." The great weight of authority is that the grounds of belief, that is, the facts or circumstances or information upon which the belief is founded, must be exhibited in the affidavit. A citation of cases in detail will not be undertaken. Suffice it to say that in the courts of nearly all of the states of the Union and the federal courts the announced law is as above stated. Many of them will be found collated in the following text-books and reports: 24 Ruling Case Law, p. 707; Underhill's Crim. Ev. (3d Ed.) § 745; Cornelius on Search and Seizure, § 83, p. 248. Apparent exceptions are found in some of the states based upon statutes attempting to dispense with the necessity of a statement of the grounds of belief. Some of these have been held void by the courts. See State v. Peterson, 27 Wyo. 185, 194 P. 342, 13 A. L. R. page 1284.

For many years the statute-law pertaining to search warrants was embraced in title 6, C. C. P. 1925, in which authority is given for the issuance of warrants permitting the search for property acquired in violation of the Penal Code. In articles 310, 311, and 312 certain requisites of a complaint or application for a warrant are given. In but one of these, namely, that in which the location of the property is not known, the statute sanctions the issuance upon an affidavit based upon "information and belief." In other words, it appears to be contemplated that the application for a search warrant should be framed in accord with the requisites of "probable cause" as that term was understood at the time the Constitution was written and the statutes enacted.

On April 5, 1907 (Gammel's Laws of Texas, 1903-1907, p. 156), the Legislature enacted a law authorizing magistrates to issue warrants to search and seize intoxicating liquor illegally possessed. The statute expressly declared that the warrant should be issued on an affidavit based upon information and belief. The Supreme Court, in the case of Dupree v. State, 102 Tex. 455, 119 S. W. 301, declared the law void because it was in conflict with article 1, § 9 of the Bill of Rights upon the ground that it permitted the search of places without describing them. From the opinion we quote:

"The most that the act can be held to require as a basis for the issuance of the search warrant is that it describe a place where the affiant believes `intoxicating liquor' is being sold, or is being kept or possessed for the purpose of being sold, in violation of law. * * * Upon this and no more the act requires the magistrate to issue the warrant. The writ is made to confer authority upon the sheriff or constable to enter and search not only `such place,' etc., that is, the place which has been described in the affidavit, but `any place,' etc., where the `affiant' has good reason to believe any such person has placed or secreted any such liquor. This is so apparent a contradiction of the Bill of Rights that the point of conflict scarcely needs to be pointed out. The Bill of Rights forbids the issuance of any warrant to search `any place' * * * without describing it."

The court stated in substance that, the fault in the statute above mentioned being fatal to its validity, no expression of opinion would be made concerning that part of it which permitted the warrant to issue on information and belief; the determination of that point being unnecessary to the decision of the case. However, it was said that, in view of the statute permitting an arrest on an affidavit of information and belief, the court would hesitate to annul the statute in question on that ground alone. The sufficiency of the complaint for arrest is not here involved. It can be said, however, that for such complaint on information and belief there is no express statutory authority (article 415, C. C. P.), while for a search warrant on such showing the Legislature has given no sanction. On the subject, however, the Supreme Court, in the opinion on the subject of warrants, plainly indicated that an affidavit for a search warrant was not sufficient to show "probable cause" when it...