Joslin v. State, 29130

• Decision Date: 26 June 1957
• Docket Number: No. 29130,29130
• Citation: 165 Tex.Crim. 161,305 S.W.2d 351
• Parties: O. B. JOSLIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 351

305 S.W.2d 351

165 Tex.Crim. 161

O. B. JOSLIN, Appellant, v. The STATE of Texas, Appellee.

No. 29130.

Court of Criminal Appeals of Texas.

June 26, 1957.

[165 TEXCRIM 161]

Sanders & Stanford, Canton, for appellant.

Joe Tunnell, Criminal Dist. Atty., Canton, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is the possession of whiskey for the purpose of sale in a dry area; the punishment, 30 days in jail and a fine of $200.

Officers Heddin and Lawrence testified that they searched the appellant's home and there found eleven pints of whiskey. One pint was concealed in a cereal box, and the other ten were found by removing a board in the floor of a cabinet. It was stipulated that Van Zandt was a dry area, and the appellant did not testify or offer any evidence in his own behalf.

The State conceded in the trial court that the search warrant which the officers had in their possession was invalid and relied upon consent of the appellant's wife to the search.

We shall discuss the question of consent.

The officers testified that they prepared the affidavit in Canton, went to Grand Saline and secured the warrant from the [165 TEXCRIM 162] justice of the peace, and proceeded to the appellant's house, where they were met at the door by his wife. They stated that they introduced themselves as officers, asked the appellant's wife if they could search her house, and she replied, 'Come right on in, you looked for some once before and you didn't find anything and I don't think you will this time,' and that she said something further about being glad that they had come while the children were away. They stated that at this juncture, as one of the officers started to hand her the warrant, the appellant's wife turned and walked back in the house, and the officer told her that he had a warrant and placed it on a cabinet. This, we think, is an accurate summary of their testimony.

Judge Christian, in Hernandez v. State, 137 Tex.Cr.R. 343, 129 S.W.2d 301, 305, reviewed the holdings of this Court on the question here presented as follows:

'* * * It is the unbroken rule in this state that 'an accused may give his consent to a search and thereby waive irregularities in the search warrant or dispense altogether with the necessity for one.' 38 Tex.Jur. 77; Davidson v. State, 126 Tex.Cr.R. 572, 72 S.W.2d 591. Thus, where an officer without having a search warrant or indicating that he has one, makes a request to search the premises of the accused and the accused replies, 'All right' or 'All right; go ahead,' he is in the attitude of giving his consent to the search. But, if the officer is armed with a defective search warrant and the accused employs the language just indicated, consent will not be inferred.

In Dixon v. State, 108 Tex.Cr.R. 650, 2 S.W.2d 272, 273, this court 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'. However, this court has held that if the officer is armed with a defective search warrant and the accused says, 'Go ahead and search; you don't need a warrant,' it will be inferred from the language used that he consents to the search. Hogland v. State, 124 Tex.Cr.R. 344, 62 S.W.2d 137. In the present case it is observed that when the officers advised appellant that they wanted to search his house he replied: 'All right; enter and search it.' ...