Gill v. State

• Citation: 115 S.W.2d 923
• Decision Date: 20 April 1938
• Docket Number: No. 19359.,19359.
• Parties: GILL v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

115 S.W.2d 923

GILL v. STATE.

No. 19359.

Court of Criminal Appeals of Texas.

April 20, 1938.

Commissioners' Decision.

Appeal from District Court, Live Oak County; W. G. Gayle, Judge.

Joe Gill was convicted of burglary, and he appeals.

Judgment reversed, and cause remanded.

Fred Erisman, of Longview, for appellant.

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

KRUEGER, Judge.

Appellant was convicted of burglary; his punishment was assessed at confinement in the state penitentiary for a term of eight years.

The testimony, briefly stated, shows that on the night of March 24, 1937, L. C. Morrison's store at Three Rivers in Live Oak county was broken into and a quantity of goods taken; a safe was also blown open and $160 in money taken. About two days prior to the commission of the burglary, policemen of the city of San Antonio were posted to watch a house occupied by Chester Willoughby on Olmos drive. Their purpose was to apprehend one Aydelott, recently escaped from jail at Uvalde. On the morning of March 25, at about 7 o'clock a. m., the officers of the city of San Antonio were notified of the burglary at Three Rivers. About 10 a. m. on the same day, appellant was seen to leave the house of Willoughby in a Ford automobile which had been in the garage at said house during the entire night. At 11 or 11:30 a. m., appellant returned to the home of Willoughby. The officers, who were watching from a house across the street, saw Willoughby place several suitcases in said automobile, and shortly thereafter Willoughby and appellant got into the car and drove away. The officers reported the matter to the Public Safety Department at Austin, giving a description and the license number of the car. About noon or a little later, the Austin officers observed the car in question, arrested appellant and Willoughby, and searched the car. In suitcases, they found a quantity of merchandise, which was identified as that taken from the store burglarized on the previous night. They also found in a sack, tools such as are commonly used by burglars. In Willoughby's coat pocket, they found a bottle of nitroglycerine. Appellant, Willoughby, and Lonnie Aydelott were jointly indicted for said burglary, but a severance was had and appellant separately tried. At his trial he did not testify or offer any affirmative defense.

By bills of exceptions Nos. 1 to 5, inclusive, appellant complains of the action of the trial court in permitting the State to prove by the officers their findings as a result of appellant's arrest without a warrant and the search of his car. His objection was that the arrest was illegal and the contemporaneous search of his car also illegal.

Article 212, C.C.P., provides as follows: "A peace officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an `offense against the public peace.'"

Article 213, C.C.P., provides: "A peace officer may arrest, without warrant, when a felony or breach of the peace has been committed in the presence or within the view of a magistrate, and such magistrate verbally orders the arrest of the offender."

Article 215, C.C.P., provides: "Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused."

Article 727a, C.C.P., as amended by Acts 1929, 2d Called Sess., c. 45, § 1, Vernon's Ann.C.C.P. art. 727a, provides: "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."

Section 9, article 1 of the Constitution of this State, provides: "The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or...