Purswell v. State

• Decision Date: 11 May 1927
• Docket Number: (No. 10770.)
• Parties: PURSWELL v. STATE.
• Court: Texas Court of Criminal Appeals

294 S.W. 1107

PURSWELL v. STATE.

(No. 10770.)

Court of Criminal Appeals of Texas.

May 11, 1927.

Rehearing Denied June 8, 1927.

Appeal from District Court, Liberty County; Thos. B. Coe, Judge.

Bill Purswell was convicted of unlawfully transporting intoxicating liquor, and he appeals. Affirmed.

Fuller & Fuller, of Houston, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is the unlawful transportation of intoxicating liquor punishment fixed at confinement in the penitentiary for one year.

The criminating evidence comes from the sheriff, Hightower, and Anderson, his deputy. They went to the home of McElvain, which consisted of a dwelling house, a barn, garden, and field embracing about 20 acres. They secreted themselves in the field. There was a social gathering at McElvain's house. The appellant was an inmate of the house as the guest of McElvain. The officers observed various persons coming into the field and returning to the house, and saw them engage in certain acts under circumstances indicating that they were drinking whisky. Appellant was among the parties, and at one time stopped within one or two feet from the sheriff, who recognized him. He had known the appellant for many years. After members of the social gathering had come and gone into the field several times, Anderson heard them talk about some "high-powered stuff," and immediately saw the appellant. Anderson at the time was secreted near a bush. As the appellant approached him, Anderson threw his flash light upon the appellant and saw a jug in his hand, which was found to contain whisky. The appellant was arrested, and the jug and contents were introduced in evidence upon the trial.

Appellant had gone to McElvain's house several days before the occasion in question. He introduced testimony to the effect that he did not take the whisky to McElvain's house. He also introduced some of the parties who were present at the gathering and who stated that they did not see the appellant have a jug. One witness testified that he saw him at the time of his arrest, but did not see him have a jug. Appellant's wife, who went with him to McElvain's house in an automobile, testified that they carried no whisky with them. The appellant did not testify.

Appellant objected to the testimony of the officers, basing his objection upon the proposition that his arrest was illegal, the officers having neither a warrant of arrest nor a warrant to search the premises. Appellant insists that the evidence was obtained under the search of a private dwelling. The nature of the premises seems unimportant for the reason that they were not the premises of the appellant nor in his possession. It has been held by this court and by many others that the right of exemption from a search of the premises is not available to the accused, but is personal to the owner or possessor of the premises. "The right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not available to any one else." See Cornelius on Search and Seizure, p. 62, § 12, and cases there collated.

The evidence of the officers, however, would be admissible provided the search of the appellant was made contemporaneously with a legal arrest. The statute permits the arrest of one who commits a felony in the presence or view of an officer without a warrant. Articles 212, 213, C. C. P. 1925. See, also, Jack Moore v. State (No. 10247) 294 S. W. 550, not yet [officially] reported, and cases collated. According to the testimony in the present case, the appellant was in the act of carrying a jug of whisky under circumstances which made evident to the officers that he was committing a felony in their presence. At least such was the state's testimony. The testimony of the appellant's witnesses was to the contrary.

There is a general objection to the court's charge that it failed to submit the law of the case. The statute requires that the exception be specific. An examination...