McKee v. State, 6778

• Decision Date: 27 October 1958
• Docket Number: No. 6778,6778
• Parties: Ole H. McKEE, Appellant, 1956 Chevrolet, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 113

318 S.W.2d 113

Ole H. McKEE, Appellant, 1956 Chevrolet, v. STATE of Texas, Appellee.

No. 6778.

Court of Civil Appeals of Texas, Amarillo.

Oct. 27, 1958.

Rehearing Denied Nov. 24, 1958.

Chaney & Harless, Dallas, for appellant.

Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.

CHAPMAN, Justice.

The State of Texas, appelle, through the District Attorney's Office of Dallas County, instituted this suit in the court below under Art. 725d, Vernon's Penal Code for confiscation and forfeiture of a 1956 Chevrolet automobile apprehended in the City of Dallas by its officers while allegedly being used in the transportation of narcotics, to-wit: marijuana.

Trial was had before a jury but after all parties completed their testimony the trial court concluded, from the evidence presented, there was no fact issue to be submitted to the jury, dismissed them and entered judgment for appellee declaring the automobile forfeited to The Texas Department of Public Safety and ordering it sold by the Sheriff of Dallas County at public auction as provided for under the provisions of Sec. 8 of the above named article of Vernon's Penal Code.

The record before us shows the record title to the automobile sought to be forfeited was in Ole H. McKee of Oklahoma City, Oklahoma. At the time it was stopped on the evening of October 14, 1956, it was being driven by Robert William Dolph and sitting beside him was Nancy Oleen Smith, the automobile owner's twenty year old daughter. It is without contradiction in the evidence that McKee had loaned the car to his daughter to go to the Texas-Oklahoma University football game in Dallas, that he had told her not to let anyone else drive it because of a clause in his insurance policy, that she was a widow and that she and her small child were living with her father and mother in Oklahoma City at the time. It is also in the record that McKee was personally acquainted with Dolph, who had been in his home Tuesday or Wednesday of the week of the Dallas trip but the record does not show he knew Dolph was going to the game with his daughter. The testimony shows that she left their home about 6:00 A.M., October 13, 1956, alone. Though Dolph was not used as a witness one of the arresting officers sought to contradict McKee's testimony by quoting Dolph at the time of the arrest as follows:

'Q. What did Dolph say about the ownership and possession of the car? A. He said he had permission to drive the car.

'Q. Did he say from whom? A. He said from Nancy's father.'

The record further reveals that a Mrs. Lisotta had called the Dallas Police Department concerning some marijuana that was in a valise or suitcase of Dolph's in her house and the Special Service Bureau of the Police Department had called Officer Stringfellow by radio to investigate the report. Stringfellow called two other officers, Hallmark and Rebstock to go with him to 6343 Bryan Parkway, a two-story house in charge of Mrs. Lisotta, where Dolph and Nancy Oleen Smith had spent the Saturday night before the arrest. Mrs. Lisotta told Officer Stringfellow that earlier in the day she had passed by the room occupied by Dolph and had smelled what she had believed to be marijuana cigarette smoke. She took him to the front room of the house where there was some baggage on the floor, opended the baggage, unquestionably without authority from Dolph, and showed him two complete and one partially smoked cigarettes which later developed to be marijuana. The partially smoked cigarette had lipstick on it. A subsequent chemical analysis showed the two cigarettes and the partially smoked one contained 9 grains of marijuana.

After Officer Stringfellow had been in the house a short time he heard the Chevrolet car come back and left out through the back door, joining his fellow officers parked across the street about a half block away.

After Dolph and Nancy Smith had been in the house a few moments they came out with several pieces of luggage, put them in the trunk of the Chevrolet and left. The officers followed them to the 4100 block on Live Oak Street at North Haskell, stopped them at a light, had the driver, Dolph, pull around on Haskell Street out of the heavy traffic and searched the car. They testified they found the two complete cigarettes and the partially smoked one wrapped in some foil paper in a side pocket of the valise. Stringfellow testified they both denied knowing what the cigarettes were and how they got there. The testimony shows Mr. McKee was in the insurance business in Oklahoma City. He admitted his daughter had been previously arrested and filed on for transportation of marijuana but had not been convicted.

We shall discuss all four points raised by appellant but not in the order briefed. Under the fourth point of error complaint is made of the trial court entering judgment for appellee when the officer had been guilty of entrapment in arresting Dolph before he transported the marijuana. Under the facts of this case appellant's contention is not well taken. The criminal design is not shown to have originated with the officers nor does the record show that they implanted in the mind of Dolph the disposition to commit the offense out of which the present forfeiture developed. Where the criminal intent originates in the mind of the accused, the fact that the officers furnish the opportunity for the commission of the offense constitutes no defense. Stevens v. State, 133 Tex.Cr.R. 333, 110 S.W.2d 906, 911; Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762, 763; Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 211, 77 L.Ed. 413. In the last case cited the Supreme Court of the U. S., in an opinion by Mr. Chief Justice Hughes has said: 'It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.' Accordingly, appellant's fourth point is overruled.

The question of illegal search and seizure raised by appellant's third point is also without merit. In 37B T.J. pp. 527, Sec. 68, it is said, 'All persons have a right to free passage along a highway without interruption or search unless the officer has probable cause for believing that their vehicles are carrying contraband or illegal merchandise, in which case a search and seizure are valid * * *. The reasonableness of the search does not necessarily depend upon the inability to procure a warrant in time to make an effective search.' There is no doubt from the record of this case that the officers had more than sufficient probable cause to justify the action taken if their testimony is to be believed. See also Article 725b, Sec. 15, Vernon's Ann.P.C.; New Way Lumber Co. v. Smith, 128 Tex. 173, 96 S.W.2d 282; Weaver v. State, 123 Tex.Cr.R. 529, 59 S.W.2d 396; Tendia v. State, 111 Tex.Cr.R. 627, 13 S.W.2d 849. Appellant's point of error complaining of illegal search and seizure is overruled.

Appellant's first point of error goes to the failure of the trial Court to hear the forfeiture within 30 days from the date of his filing of a verified answer, as provided in Sec. 5 of Art. 725d, Vernon's Ann.P.C. Such answer was filed on November 26, 1956, and the case was tried on July 23, 1957. The question here presented is whether such 30 day time requirement is directory or mandatory.

Subsection (d) of section 4, Art. 725d, Vernon's Ann.Penal Code provides, 'If a person was in possession of the subject matter sought to be forfeited at the time that it was seized, such person shall likewise be made a party ...