Hall v. State

• Citation: 288 S.W. 202
• Decision Date: 17 November 1926
• Docket Number: (No. 10187.)
• Parties: HALL v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

288 S.W. 202

HALL v. STATE.

(No. 10187.)

Court of Criminal Appeals of Texas.

November 17, 1926.

Appeal from District Court, Bowie County; Hugh Carney, Judge.

Bob Hall was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals. Affirmed.

W. W. Arnold and Crumpton & Boswell, all of Texarkana, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, 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 a period of two years.

Appellant, a farmer, resided upon a tract of land consisting of about 100 acres, upon which there were a number of outhouses and a dwelling house. One of the outhouses was described as a little store building, which seems to have been used at times for the purpose of furnishing articles to tenants and others. The premises were searched, and in the storehouse, which was some distance from the dwelling house, and in the barn, there were found a number of containers exhibiting the odor of whisky, and some of them containing whisky. Behind the counter in the store building there were found ten quarts of whisky in fruit jars. There were other circumstances supporting the theory of the state that the whisky was possessed by the appellant for the purpose of sale.

The judgment is attacked from various angles on account of the alleged insufficiency of the affidavit upon which the search warrant was issued. The affidavit read as follows:

"Before me, G. W. Ragland, a justice of the peace in and for said county, on this day personally appeared M. T. Goodwin and A. K. Neely who, after being by me duly sworn, on his oath, deposes and says: That he has good reasons to believe, and does believe, that Bob Hall is engaged in the unlawful sale of intoxicating liquors and keeps and possesses intoxicating liquors for the purpose of sale, at, in and near the following described place, building and structure:

"One residence and all premises and outhouses in and around said residence, located about twelve miles from Texarkana, on the H. V. Beasley farm on the Index Road, Bowie county, Tex., and being the Bob Hall residence; that the sale of such liquors, and the keeping of same as aforesaid, is a common and public nuisance."

In article 691 of the Penal Code, Revision of 1925, it is declared in substance that a search warrant may be issued in relation to violations of the law prohibiting the liquor traffic under title 6, C. C. P. The statute, however, contains the following language:

"No warrant shall be issued to search a private dwelling occupied as such, unless some part of it is used as a store, shop, hotel or boarding house, or for some purpose other than a private residence, or unless the affidavits of two credible persons show that such residence is a place where intoxicating liquor is sold or manufactured in violation of the terms of this act. The application for the issuance of and the execution of any such search warrant, and all proceedings relative thereto, shall conform as near as may be to the provisions of title 6 of the Code of Criminal Procedure, except where otherwise provided in this title."

Title 6, which has long been in the Code, relates to search warrants for property taken by theft and other related matters, and permits their issuance upon the affidavit of one person stating under oath, among other things, "that he has good ground to believe" that the property was stolen by the person named. Article 691, supra, was enacted in 1919, and the application for a warrant to search a private dwelling occupied as such, and not otherwise used for the purposes mentioned above, differs materially from the application called for in title 6, in that in article 691 the affidavit must be made by two credible persons and must show that the residence described is a place where intoxicating liquor is sold or manufactured in violation of the law. The term "show" it is claimed has a significance different from that of "belief."

The following citations show the distinction: Cooley's Const. Limitations, p. 429; Veeder v. United States, 252 F. 414, 164 C. C. A. 338; People v. Elias, 316 Ill. 376, 147 N. E. 474; Swart v. Kimball, 43 Mich. 451, 5 N. W. 635. Upon the authorities above mentioned, it is also claimed that an essential requisite of a search warrant is that it show the facts upon which the belief is based. See Underhill on Crim. Ev. (3d Ed.) p. 1022, note 24, citing many cases. There are also many cases to the contrary. See the opinion of the Supreme Court of this state in Dupree v. State, 102 Tex. 464, 119 S. W. 301. These matters are not discussed in detail for the reason that the facts in hand do not seem to demand it, and the evidence is such as forms the basis of a serious question whether the search made was that of a private dwelling occupied as such within the meaning of article 691, supra. Upon that subject the precedents are somewhat conflicting. See Thompson v. State (Tex. Cr. App.) 96 S. W. 1085; Williams v. State, 48 Tex. Cr. R. 325, 87 S. W. 1155; Marks v. State, 51 Tex. Cr. R. 218, 101 S. W. 805; Hopper v. State (Tex. Cr. App.) 105 S. W. 816; Handy v. State, 46 Tex. Cr. R. 406, 80 S. W. 526; Reyes v. State, 51 Tex. Cr. R. 420, 102 S. W. 421; Mays v. State, 50 Tex. Cr. R. 391, 97 S. W. 703. See, also, Words & Phrases, Second Series, vol. 4, p. 338; 32 Ency. of Law & Proc, 357.

According to the uncontroverted evidence, the officers went upon the appellant's premises and informed him that they had a search warrant, whereupon he said: "You don't need any search warrant. Just go ahead and search anywhere you want to." This court understands that the legal precedents are to the effect that one may consent to the search of his premises and thereby waive irregularities in the search warrant or dispense with a search warrant altogether. Such is the declaration in Cornelius on Search and Seizure, § 17, p. 73. The citation of authorities in the notes seems to support the text....