Haynes v. State

• Decision Date: 03 October 1928
• Docket Number: (No. 11856.)
• Parties: HAYNES v. STATE.
• Court: Texas Court of Criminal Appeals

9 S.W.2d 1043

HAYNES v. STATE.

(No. 11856.)

Court of Criminal Appeals of Texas.

October 3, 1928.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Guy Haynes was convicted for transporting intoxicating liquor, and he appeals. Reversed and remanded.

T. B. Ridgell, of Breckenridge, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

HAWKINS, J.

Conviction is for transporting intoxicating liquor; punishment being one year in the penitentiary.

Appellant was a negro. He was seen by officers to drive his car to a point near a negro shack in the city of Breckenridge. He took a pasteboard box from the car and placed it in an ice box at the rear of the shack and went inside. The officers did not know what was in the box. After appellant went in the house, they looked in the ice box and found that the carton contained five gallons of whisky in fruit jars. After finding the whisky, the officers went to the shack, where they overheard a conversation between appellant and a negro woman called "Boots," in which he told her he had brought five gallons of whisky and put it in the ice box. The officers then went in the house, arrested appellant, who had gone to bed with "Boots," and took possession of the whisky.

It was admitted that the officers had no search warrant. Because of its absence, objection was interposed to the introduction in evidence of the liquor found, and also to the testimony of the officers about finding it in the ice box. The evidence was admitted on two theories: (a) That a felony was committed in the presence of the officers, which, under article 212, C. C. P., justified the arrest and search; (b) that the place searched was not appellant's place of residence, and therefore appellant had no ground of complaint, even though the search was illegal.

The officers had seen appellant take the carton from his car and place it in the ice box, but did not know what was in the carton; they later heard him tell "Boots" he had brought five gallons of whisky and put it in the ice box. But, as we understand the evidence, they had searched the ice box and discovered the whisky before hearing such admission from appellant. If this admission had been heard by the officers before they made the search, such admission in connection with what they had seen might have authorized an arrest and search under article 212, C. C. P., and the following authorities: Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Moore v. State, 107 Tex. Cr. R. 24, 294 S. W. 550; Purswell v. State, 107 Tex. Cr. R. 121, 294 S W. 1107; Hawley v. State, 107 Tex. Cr. R. 243, 296 S. W. 556; Hodge v. State, 107 Tex. Cr. R. 579, 298 S. W. 573; Levine v. State (Tex. Cr. App.) 4 S.W.(2d) 553; Duda v. State (Tex. Cr. App.) 6 S.W.(2d) 115; Bevins v. State (Tex. Cr. App.) 7 S.W.(2d) 532. The admission from appellant came to the officers' knowledge subsequent to a search of the ice box without a warrant authorizing it; such subsequent admission would in no sense legalize a search already illegally conducted, nor render admissible evidence obtained thereby.

If this conviction could be sustained, it would be on the theory that the premises searched was not appellant's residence, hence search of it was no invasion of his rights, and he could not object to evidence obtained as a result of the search, even though it was illegal. Craft v. State, 107 Tex. Cr. R. 130, 295 S. W. 617; Dennis v. State, 108 Tex. Cr. R. 672, 2 S.W.(2d) 223; Burnett v. State (Tex. Cr. App.) 7 S.W.(2d) 548; McFarland v. State (Tex. Cr. App.) 7 S.W.(2d) 955. Article 4a, C. C. P., reads:

"It shall be unlawful for any * * * peace officer * * * to search the private residence [or] actual place of habitation * * * of any person, without having first obtained a search warrant as required by law."

And article 727a, C. C. P., excludes any evidence obtained in violation of the Constitution or laws. Upon the point at issue, viz. whether the place searched was or was not appellant's private residence, the evidence is in conflict.

The assistant chief of police testified:

"I next saw him (appellant) when he got out of his car and went into a negro girl's house, we called her `Boots.' I do not know her name. Boots is all...