Rochelle v. State

• Decision Date: 27 April 1927
• Docket Number: (No. 10282.)
• Citation: 294 S.W. 860
• Parties: ROCHELLE v. STATE.
• Court: Texas Court of Criminal Appeals

294 S.W. 860

ROCHELLE v. STATE.

(No. 10282.)

Court of Criminal Appeals of Texas.

April 27, 1927.

Rehearing Denied June 1, 1927.

Appeal from District Court, Bowie County; Hugh Carney, Judge.

Rudolph Rochelle was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals. Affirmed, and motion for rehearing overruled.

King, Mahaffey & Wheeler, of Texarkana, 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 possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for one year and six months.

The appellant was apprehended at a social gathering of negroes. In his automobile there were three quart jars full of corn whisky, one fruit jar about half full, a "soda water bottle with the odor of whisky, and two empty fruit jars with the odor of whisky in them." This was at night at about 11 o'clock. Peace officers testified that they left Texarkana about 9 o'clock at night to go to the home of John Stuart, where there was a negro dance. They drove some 300 yards past Stuart's house, and observed the appellant traveling on the road towards Texarkana. After he passed them, the officers turned back, and went to Stuart's house. Upon reaching a point about 30 steps from the house, they observed the appellant sitting in a car. As the officers approached, they saw other persons leaving the appellant's car and going towards the house. There were several persons around the car. As the officers approached, appellant started the engine. One of them said to him: "Hello, Rochelle, what is the excitement out here?" The appellant did not answer him. They observed in the appellant's car a carton containing the articles mentioned above. According to the state's testimony, appellant stated to the officers that he had been down to the river hunting pecans, and had bought the liquor from a negro whose name he did not know; that he paid $7 for it.

Appellant testified in his own behalf, and introduced the testimony of other witnesses, to the effect that he had gone to the vicinity for the purpose of going fishing with two companions; that they concluded that they would like to have some whisky, and went to Stuart's house for the purpose of procuring it; that while there the appellant purchased from a negro by the name of Ivey the whisky which was found in his car.

The testimony of the officers was opposed upon the ground that the information which they disclosed was obtained by an illegal search of the appellant's automobile, and that the introduction of the testimony was inhibited by article 727a, C. C. P. 1925, in which testimony obtained through an illegal search was declared inadmissible. The position taken by the state is that the facts adduced antecedent to the search were sufficient to show "probable cause" within the meaning of the Constitution and the statutes (article 4a, C. C. P. 1925), and was therefore not subject to the objection made. In qualifying the bill, the court stated that the officers had no search warrant, but that the whisky was in plain view of the officers, and that no search was necessary to find it; that its possession was a felony committed in the presence of the officers; and that no warrant was needed for the arrest of the appellant. The evidence adduced apparently supports this accepted qualification of the appellant's bill of exceptions, and brings the case within the rule stated in Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 763; Odenthal v. State (Tex. Cr. App.) 290 S. W. 745; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. It also comes within the purview of the law which authorizes a search contemporaneous with a lawful arrest. See articles 212, 213, C. C. P. 1925; also Hodges v. State, 6 Tex. App. 620, and other cases collated in Branch's Ann. Tex. P. C. § 1979; Crippin v. State, 80 Tex. Cr. R. 293, 189 S. W. 496; Carroll v. United States, supra; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, and other cases collated in Moore v. State (No. 10247) 294 S. W. 550, not yet [officially] reported. The above disposes of bills of exceptions Nos. 1 and 2.

Bill No. 3 reflects the complaint of the refusal of the court to postpone the proceedings in order that the attorneys might talk with the witness Markham, for whom an attachment had been issued. From the bill it appears that the appellant desired to refrain from becoming a witness until after Markham had been interviewed by his attorneys. Markham arrived, it seems, about two hours after the appellant had testified. The bill fails to show that there was any conflict between the testimony of the appellant and that of Markham, and the statement of facts indicates that their testimony was not in conflict. Moreover, in qualifying the bill, the court stated that Markham and the appellant were neighbors, and that he could very easily have been interviewed before the announcement of ready for trial. The record indicates that the appellant and Markham were intimate friends.

Bill No. 4 complains of the introduction of testimony to the effect that the appellant had been previously indicted in the federal court in Miller county, Ark., for the manufacture of a still. It appears that this testimony was withdrawn by the court. In explanation of the bill the stenographer's transcription of his notes is attached. It appears that state's counsel asked the appellant if he had not been indicted in Arkansas, to which he replied: "Not in the state court, but in the federal court," where he and the witness Markham were jointly charged with making a still. Appellant also said that he and Markham had also been indicted in the federal court in Texas with manufacturing whisky. The objection urged to this testimony was that the offense was a misdemeanor. The court, being in doubt about it, struck out the testimony. We understand that under the federal statutes enforcing the prohibition embraced in the Eighteenth Amendment to the Constitution the offenses mentioned may be felonious. See U. S. Compiled Statutes, 1923 Cumulative Supplement, under the head of National Prohibition, § 10138½ et seq.

The matter was before this court in Ferguson's Case, 101 Tex. Cr. R. 670, 276 S. W. 919, in which it was said that when, for the purpose of impeachment, proof is made that a witness has been charged with an offense which may be a felony, error is not shown in the receipt of the evidence, unless it appears from the bill of exceptions that in the particular instance it was merely a misdemeanor. In the present case the bill does not show error.

In bill No. 6 it appears that the witness Markham testified on cross-examination that he had been indicted in the federal court in Arkansas for manufacturing a still, and had been acquitted. He was asked how many times he had been indicted in Texas for felonies. He replied:

"Well, I was indicted twice in Texas that I know of. I don't know whether it was an indictment or not, but I paid a fine for fighting; also for dynamiting fish."

This was excluded. He then answered that he had been indicted in Texarkana in the federal court for manufacturing liquor and in Arkansas for manufacturing a still. It appears that he was charged in the state court by a complaint with manufacturing a still, but was not indicted. The remarks touching bill No. 5 are also applicable to bill No. 6.

From bill No. 7 it appears that objection was made to the testimony of Officer McDonald with regard to his conversation with the appellant at the time of his arrest, to the effect that in reply to a question appellant stated that, while hunting pecans down by the river, he bought the whisky from a negro for $7. Against this testimony objection was urged that it was violative of the confession statue, which inhibits the introduction of declarations of the accused made while under arrest for the purpose of inculpating him. In qualifying the bill, the court stated that the remarks were a part of the conversation between the appellant and the officers;...