McEathron v. State

• Decision Date: 03 October 1956
• Docket Number: No. 27739,27739
• Citation: 294 S.W.2d 822,163 Tex.Crim. 619
• Parties: Wallace Edwin McEATHRON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 822

294 S.W.2d 822

163 Tex.Crim. 619

Wallace Edwin McEATHRON, Appellant, v. The STATE of Texas, Appellee.

No. 27739.

Court of Criminal Appeals of Texas.

Oct. 3, 1956.

J. T. Kelley, Jr., Russell F. Wolters, Houston, for appellant.

Dan Walton, Dist. Atty., Eugene Brady and Thomas D. White, Asst. Dist. Attys., Houston, Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

All prior opinions are withdrawn.

The offense is driving while intoxicated; the punishment, 10 days in jail and a fine of $150.

The issue of whether appellant was intoxicated at the time in question was closely contested, but there is sufficient evidence to sustain the verdict of the jury.

Appellant contends that the testimony of the State's witnesses on the issue was obtained as a result of an unlawful arrest and therefore inadmissible. This presents the only serious question on the appeal.

Air Force Captain Barber observed appellant driving an automobile at a high rate of speed, saw him lose control of the car and on three occasions strike the esplanade, saw him drive through red traffic lights, narrowly missing cars awaiting the signal to proceed. He observed that appellant was drinking from a bottle as he was driving along the Freeway.

He testified that when the appellant passed him the second time at a high rate of speed, cut back in front of him sharply, and gain collided with the esplanade, he pursued him in an effort to get his license number and report it to the police.

After appellant's car swerved from the road and came to a stop Barber observed him, concluded that he was intoxicated, and detained him until an officer arrived.

Barber and other witnesses who testified for the State based their opinion as to appellant's intoxicated condition on their observation of him while he was being so detained.

We were so unpleasantly distracted by the witness Barber, who, among other things, bragged that his conduct in arresting the appellant would look good to his commanding officer, that we overlooked the simple mandate of the statutes and the holdings of this Court in Cook v. State 155 Tex.Cr.R. 580, 238 S.W.2d 200, Morgan v. State, 159 Tex.Cr.R. 231, 262 S.W.2d 713, and Rent v. State, 160 Tex.Cr.R. 326, 268 S.W.2d 674; and the case of Clark v. West, Tex.Civ.App., 126 S.W.2d 569.

Article 212, Vernon's Ann.C.C.P., authorizes an arrest by a private citizen for an "offense against the public peace."

Title 9 of the Penal Code is entitled 'Offenses against the public peace'.

Chapter 3 of Title 9 enumerates 'Affrays and disturbances of the peace'.

Article 477, Vernon's Ann.P.C., is within that chapter and reads as follows:

'Whoever shall get drunk or be found in a state of intoxication in any public place, or at any private house except his own, shall be fined not exceeding one hundred dollars.'

If a man is found in a condition described in the foregoing statute while on foot, he is subject to arrest by a private citizen by virtue of the statute. Surely, then, if he is in such condition in an automobile, the right to arrest is the same.

The arrest being lawful, the restimony of those who observed the appellant following his arrest was admissible.

Finding no reversible error, the appellant's motion for rehearing is overruled, and the judgment of the trial court is now affirmed.

DAVIDSON, Judge (dissenting).

While driving his automobile upon a public highway, appellant was stopped and placed under arrest by a private citizen, as distinguished from a peace officer in this state.

The private citizen stopped appellant and arrested him because he thought he 'had the right to detain him from driving like that.'

All the testimony for the state, showing that appellant was drunk and under the influence of intoxicating liquor at the time, was obtained as a result of the arrest--but for which there was no such evidence.

Appellant denied that he was intoxicated at the time. He was supported in that denial by a policeman of the city of Houston.

Whether, in fact, appellant was drunk or under the influence of intoxicating liquor at the time of his arrest was a closely contested issue under the evidence.

If appellant's arrest was lawful, the testimony obtained as a result of that arrest was admissible. If the arrest was unlawful, no evidence obtained as a result of the arrest was admissible.

My brethren hold that the arrest was authorized and, therefore, lawful. To that holding I do not agree. In my opinion, the arrest of appellant was without lawful authority and a flagrant violation of his constitutional guarantee against an unlawful arrest.

What my brethren here hold is that a private citizen has the power and authority to arrest without warrant one whom he believes to be drunk or under the influence of intoxicating liquor in a public place. In my opinion such holding is judicial legislation, by this court, of the rankest sort. The legislature of this state, in whom the Constitution places the exclusive power to enact laws and thereby determine when arrests are lawful, has not so declared but, to the contrary, has consistently refused to do so.

In all of our statutory law, the legislature of this state has conferred upon a private citizen the right to arrest and take his neighbor into custody, without warrant, only in the two instances which are set forth in Art. 212, Vernon's Ann.C.C.P., which reads as follows:

'Offense within view.--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."

The right of a private citizen to arrest his neighbor is therefore expressly limited by the legislature of this state to two classes of offenses: those classed as felonies and those classed as breaches of the peace. Nowhere does that statute, in so many words, authorize a private citizen to arrest his neighbor when he finds him in a public place and concludes that he is drunk and under the influence of intoxicating liquor--and this, without the neighbor being, in fact, in such condition. All that is necessary to authorize the arrest, according to the majority opinion, is that the individual think or believe that he is in that condition.

There can be no question as to the holding of my brethren, for, after setting out the statute which makes drunkenness in a public place a misdemeanor, they say:

'If a man is found in a condition [drunk] described in the foregoing statute while on foot, he is subject to arrest by a private citizen by virtue of the statute. Surely, then, if he is in such condition in an automobile, then the right to arrest is the same.'

Prior to 1951, it was the consistent holding of this court that a private citizen could not arrest without warrant one whom he found drunk in a public place. The cases so holding are: King v. State, 132 Tex.Cr.R. 200, 103 S.W.2d 754; Crow v. State, Tex.Cr.App., 216 S.W.2d 201; and Bennett v. State, 136 Tex.Cr.R. 192, 124 S.W.2d 359.

In the King case, supra, this court said:

'Drunkenness is not classed as a felony. Neither is it an offense against the public peace. Hence the act of the constable in arresting Jessie was illegal and the prisoner had a right to effect his release and thereafter resist the officer in rearresting him.'

In the Bennett case, supra, this court, speaking through Judge Graves, made it clear that drunkenness in a public place was not an offense 'against the public peace,' and, therefore, that arrests for drunkenness were not authorized under Art. 212, C.C.P. It was there pointed out that the offense of drunkenness in a public place was one of disorderly conduct and that the right to arrest without warrant for that offense was, by Arts. 998 and 999, R.C.S.1925, expressly limited to city marshals and policemen. Private citizens were therefore expressly precluded by the legislature from making arrests without warrant for the offense of drunkenness in a public place.

The construction which this court gave to Art. 212, C.C.P., as heretofore pointed out, remained such until 1951, when this court, in Cook v. State, 155 Tex.Cr.R. 580, 238 S.W.2d 200, without in any manner attempting to point out wherein the prior holdings were incorrect, overruled those cases with the mere statement that it was the then holding of the court that drunkenness in a public place was an offense against the public peace and that arrests could be made thereafter without a warrant, under the authority of Art. 212, C.C.P.

The holding in the Cook case has subsequently been followed in Morgan v. State, 159 Tex.Cr.R. 231, 262 S.W.2d 713, and in Rent v. State, 160 Tex.Cr.R. 326, 268 S.W.2d 674, and my brethren here follow it.

It must be remembered that the prior cases were overruled and the present rule established without any amendment by the legislature of this state of Art. 212, C.C.P., or any indication whatsoever from the legislature that the construction which this court had given to Art. 212, C.C.P., prior to 1951, was not in keeping with the legislative intent.

So the holding in the Cook case, as also the holding here, is twofold, being (a) that drunkenness is an offense against the public peace and (b) that it is no longer a disorderly-conduct offense, as pointed out and demonstrated in the Bennett case, supra, and authorities there cited and discussed.

The holding of this court prior to the Cook case in 1951 is, in my opinion, correct and should not have been overruled.

The Cook case made no attempt to show wherein the prior holding was wrong; nor did it attempt to show wherein the holding in that case was correct. No reason is given for the holding therein.

While the decisions announcing the holding prior to 1951 need no defense, I cannot forego this opportunity to demonstrate the correctness thereof.

The offense of drunkenness in a public place is defined by Art. 477, ...