Hepworth v. State

• Decision Date: 14 November 1928
• Docket Number: (No. 11821.)
• Parties: HEPWORTH v. STATE.
• Court: Texas Court of Criminal Appeals

12 S.W.2d 1018

HEPWORTH v. STATE.

(No. 11821.)

Court of Criminal Appeals of Texas.

November 14, 1928.

Rehearing Denied January 16, 1929.

Commissioners' Decision.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

William Hepworth was convicted of felony theft, and he appeals. Affirmed.

Foster & Fullingim, of Amarillo, for appellant.

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

MARTIN, J.

Offense, felony theft; penalty, four years in the penitentiary.

Appellant, with two lady companions, visited the Marizon Store in Amarillo on October 12, 1927, at about 11 o'clock a. m. They departed, and shortly after their departure dresses belonging to the store were missed. The next morning Officer Miller had reported to him that a man fitting the description of appellant was on the streets of Amarillo with a bunch of goods, and that he was carrying a parcel under his arm supposed to be the dresses stolen the day before. Finding appellant on the street, Officer Miller placed him in custody without either a warrant of arrest or search warrant, and found in his possession five dresses belonging to the Marizon Store and clearly identified as their property.

The chief contention of appellant relied on for reversal is the reception of this officer's evidence regarding what was found in possession of appellant. Claim is made that, the arrest being illegal, the evidence obtained by reason of same was inadmissible and its reception in evidence inhibited by the terms of our recently enacted search and seizure statute. The trial court admitted the evidence upon the mistaken theory that the officer had been informed by a credible person that a felony had been committed and that the offender was about to escape. Under the terms of article 215, C. C. P., this authorized an arrest without a warrant, if the predicate therein stated was present. All of appellant's propositions revolve around this mistaken theory, and relate chiefly to the insufficiency of the evidence to support any such conclusion. Both the trial court and counsel for appellant have apparently overlooked article 325, C. C. P., reading as follows: "All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay."

Under the express terms of this statute it was the right, as well as the duty, of the officer to arrest appellant and recover the stolen goods. The legal right to arrest generally carries with it the right to make a search without a search warrant. Levine v. State, 109 Tex. Cr. R. 331, 4 S.W.(2d) 553, and authorities there cited. Article 325, supra, recently received construction by the Supreme Court of this state in the case of Henderson v. U. S. F. & G. Co., 298 S. W. 404. This authority contains the following language: "By virtue of article 325, all persons have a right to prevent the consequences of theft, not only by seizing the property which has been stolen, but by arresting the offender. Moreover, in attempting to do these things authorized by this article, persons so acting would not be guilty of false imprisonment, should there be reasonable ground to suppose the property stolen, and the party taken to be the offender, notwithstanding it should thereafter transpire that the property was not stolen, and that the person taken was not a thief."

This article has uniformly been held to give the right of arrest without a warrant. Morris v. Kasling, 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 398; Porez v. State, 29 Tex. App. 618, 16 S. W. 750; Smith v. State, 13 Tex. App. 507; Childress v. State, 107 Tex. Cr. R. 11, 294 S. W. 586. It is a wholesome statute, designed to give protection from thieves, and we have neither the inclination nor the legal right to nullify its salutary provisions by declaring its operation to be controlled by the terms of the search and seizure law, enacted long after article 325, and which neither expressly nor by necessary implication repeals it, in our opinion.

Bill of exception No. 2 raises the question of an error of the court in refusing to sustain appellant's challenges to certain jurors. It appears from this bill that appellant was under indictment in another case, and that three of the jurors had an opinion as to the guilt of the appellant in such case. Appellant's bill is qualified by the court to show that such jurors on their voir dire showed conclusively to have no bias in favor of or prejudice against defendant or his codefendants in the instant case, nor did they have any opinion as to the guilt of the appellant in this case. We are bound by the court's qualification, and from same we conclude that the jurors complained of were not disqualified.

Such other questions as have been sufficiently raised do not in our opinion show any error, and their importance does not seem to justify discussion. We deem the evidence sufficient.

The judgment is affirmed.

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.

On Motion for Rehearing.

MORROW, P. J.

From bill of exceptions No. 2 it is made to appear that in the district court of Potter county there were pending against the appellant two cases charging him with felony theft; that in cause No. 3790 the charge was theft from M. Watner, and in the present case, No. 3791, the charge was felony theft from M. Sherman. In cause No. 3790, the trial resulted in a verdict of conviction, with a penalty of confinement in the penitentiary for a period of four years. During the same week cause No. 3791 was also tried. In the formation of the jury in cause No. 3790, jurors J. B. Clouse, Joe Killough, and M. O. Kemp were excused on challenges for cause made by the appellant upon the admission of each of said jurors that they had either talked to the state's witnesses or been so associated with them as to form from that source a disqualifying opinion. On the venire submitted to the appellant for trial in the present case (No. 3791) there appeared the names of the same persons, namely, Clouse, Kemp, and Killough, who had been excused for cause from service upon the previous trial of the appellant. They were challenged for cause by reason of their admission heretofore stated of facts which disqualified them in the previously tried case No. 3790. The challenge was overruled. At the time the challenge was overruled, there were fifteen men upon the list whom the appellant desired to excuse. Among them were Killough, Clouse, and Kemp. The appellant exercised ten peremptory challenges, including Killough, but left Clouse and Kemp on the jury. He also left upon the jury four other men whom in his bill he says he desired to discharge, but against whom there is stated in the bill no fact constituting them disqualified or objectionable jurors.

It is further shown by the bill that on the trial Police Officer Miller testified that he arrested the appellant upon information received from Watner that a theft had been committed by a person answering the description of the appellant. The trial judge signed the bill of exceptions as prepared by the appellant, and after his signature appears the following statement: "Be It Remembered that to each and all of the foregoing qualifications counsel for defendant then and there objected and excepted to said qualifications."

No qualifications are shown in the record preceding the statement last quoted. However, following it, there is a qualification to the effect that the voir dire examination of jurors Killough, Clouse, and Kemp showed no bias for nor prejudice against the appellant, but did show that they had an opinion as to the guilt of the appellant of the offense charged in cause No. 3790. Whether the qualifying statement under the circumstances is to be considered or not is deemed immaterial. The record as made reveals the fact that the disqualification claimed is the fact that jurors Killough, Kemp, and Clouse had an opinion touching the guilt of the appellant of the offense charged in cause No. 3790, wherein he was accused of theft of property from Watner. Whether the legal question attempted is important may be open to question, in view of the fact that peremptory challenges were not used to exclude from the jury the jurors Killough, Kemp, and Clouse; there being no showing made that the jurors mentioned could not have been excused on peremptory challenges without leaving on the list jurors who were in a legal sense objectionable. See Willis v. State, 91 Tex. Cr. R. 333, 239 S. W. 212; Jester v. State, 100 Tex. Cr. R. 409, 273 S. W. 570; Dunne v. State, 98 Tex. Cr. R. 12, 263 S. W. 608. Waiving that question, however, the rule seems well settled that the mere fact that a juror has formed an opinion touching the guilt of the accused of an offense growing out of another and different transaction from that involved in the case on trial does not necessarily disqualify him. Texas cases in point are Edgar v. State, 59 Tex. Cr. R. 255, 127 S. W. 1053; Arnold v. State, 38 Tex. Cr. R. 1, 40 S. W. 734; Bailey v. State, 56 Tex. Cr. R. 226, 120 S. W. 419; West v. State, 35 Tex. Cr. R. 48, 30 S. W. 1069; Asher v. State, 102 Tex. Cr. R. 162, 277 S. W. 1099; Rutherford v. State, 102 Tex. Cr. R. 310, 277 S. W. 669. Analogous cases are Irvins v. State, 55 Tex. Cr. R. 349, 116 S. W. 591; Gruesendorf v. State (Tex. Cr. App.) 56 S. W. 624....