Frazier v. State, 14423.

• Decision Date: 10 June 1931
• Docket Number: No. 14423.,14423.
• Citation: 43 S.W.2d 597
• Parties: FRAZIER v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W.2d 597

FRAZIER v. STATE.

No. 14423.

Court of Criminal Appeals of Texas.

June 10, 1931.

Appeal Reinstated October 14, 1931.

Rehearing Denied December 9, 1931.

Commissioners' Decision.

Appeal from District Court, Hardeman County; W. N. Stokes, Judge.

Henry Frazier was convicted of possessing intoxicating liquor for purpose of sale, and he appeals.

Affirmed.

Marshall & Perkins, of Quanah, for appellant.

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

CALHOUN, J.

Offense, possession of intoxicating liquor for the purpose of sale; punishment, two years in the penitentiary.

The caption fails to show the date of the adjournment of the term of court at which appellant was convicted. Under the decisions of this court, the appeal must be dismissed. Sherman v. State, 115 Tex. Cr. R. 414, 28 S. W. (2d) 801, and authorities cited.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

CHRISTIAN, J.

The record having been corrected, the appeal is reinstated and the case considered on its merits.

Officers testified that they searched appellant's premises and found approximately five gallons of whisky buried in appellant's cow lot. They stated that at the time they discovered the whisky appellant said: "Yes, I have got ten gallons more but I guess you won't find it." According to the version of the officers, one of the officers stated to appellant that he thought he (appellant) "knew better than this." Appellant replied: "Well, I had to; my family is in destitute circumstances and I had to do something." The officers further testified that appellant aided them in carrying the whisky to their automobile. Appellant denied that he was in the cow lot with the officers. At this point, we quote appellant's testimony as follows: "I do not know whether they found any whisky out there that day or not. I did not have any whisky there. They put something in the car and brought something away from that place. I saw them carrying some sacks but I do not know what was in those sacks. I never did see in those sacks. I could not say how they got there. I had some loose sacks in the barn, hull sacks and stuff like that. I had been feeding hulls and meal to the cows. I certainly will tell the jury that I did not have any whisky on that place. There was no whisky there that I know anything about, not a drop. If there was any whisky there it was not my whisky. I never buried any whisky there."

Appellant testified that he moved on the place after the death of one Eckert. Witnesses for appellant testified that Eckert kept whisky on the premises.

The officers were armed with a search warrant when they went to appellant's premises. On the trial, it was admitted by the district attorney that the search warrant was invalid. Upon objection by appellant to the testimony of the officers touching the finding of the whisky, the state sought to show that appellant consented to the search. The several bills of exception relating to the action of the court in overruling appellant's objection to the testimony of the officers disclose that the officers testified that appellant stated to them prior to the time that they entered upon his premises, and before they handed him the search warrant, that they (the officers) were perfectly welcome to enter his premises and make a search. One of the officers testified as follows: "I had a conversation with Mr. Frazier just after I drove up right in front of his house, possibly as far as from here to the railing, to the yard fence. When I stopped he stepped out of the house and came outside of the yard fence. I said, `Henry, they are telling bad tales on you,' I said, `We came out to look the place over,' and he said `All right, come on in, you are perfectly welcome.' * * * I was sitting in the car when I first had the conversation with Mr. Frazier, and at that time he told me to go on and search. As well as I remember I had gotten to about the corner of the house from the car when I handed him the search warrant; I do not remember just where it was, I just took it out of my pocket and handed it to him as we were walking along; I don't remember just where but I am sure it was after we were in the inclosure. I had done started the search when I gave him the search warrant."

The other officer gave testimony substantially the same as the foregoing. He said that appellant consented to the search before the search warrant was delivered to him (appellant). We again quote from the testimony of one of the officers, as follows: "I told him afterwards that I had a search warrant. I told him that after I was walking in the house. I just handed him a copy as he was walking in the house, I think."

Appellant testified, in substance, that he told the officers to go ahead and make the search. However, he further testified that he did not make this statement to the officers until they had entered his premises and handed him a search warrant. He said he read the search warrant before telling the officers to go ahead with the search. The court overruled the objection to the testimony of the officers, with the statement that there was an issue of fact as to whether appellant consented to the search. Thereafter, in his main charge, the court submitted this issue to the jury.

As we understand the record, if the testimony of the officers was to be believed, appellant consented to the search before the officers entered upon his premises and prior to the exhibition by the officers of the search warrant. If the testimony of appellant was to be believed, he did not consent to the search until the officers entered his premises and he (appellant) had read the search warrant exhibited by the officers. The facts presented are not unlike those found in Gonzales v. State, 113 Tex. Cr. R. 122, 18 S.W.(2d) 618, 619. In Gonzales' Case, the officers went with an invalid search warrant to Gonzales' residence, and, according to their testimony, before beginning the search, told Gonzales they were officers and desired to search his residence. A copy of the search warrant was not delivered to Gonzales until after he had given his consent to the search. In the opinion overruling the motion for rehearing, Presiding Judge Morrow, speaking for the court, said: "We are of the opinion that the trial court was warranted in drawing the conclusion from the testimony given by the officer on his voir dire examination that the appellant consented to the search."

The facts in the present case are unlike those in Dixon v. State, 108 Tex. Cr. R. 650, 2 S.W.(2d) 272, 273, cited by appellant. In that case the officers stated to Dixon that they had a search warrant under which they proposed to search his house. Dixon said: "All right, go ahead." In rendering the opinion, Judge Lattimore said: "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."

Appellant also cites Jordan v. State, 111 Tex. Cr. R. 83, 11 S.W.(2d) 323. In Jordan's Case, the accused's wife was advised that the officers had a search warrant for the search of the accused's residence. On being asked if she had any objection to the search, the wife said "No;...