Sherow v. State

• Decision Date: 19 January 1927
• Docket Number: (No. 9927.)
• Citation: 290 S.W. 754
• Parties: SHEROW v. STATE.
• Court: Texas Court of Criminal Appeals

290 S.W. 754

SHEROW v. STATE.

(No. 9927.)

Court of Criminal Appeals of Texas.

January 19, 1927.

Appeal from District Court, Rusk County; R. T. Brown, Judge.

Bennie Sherow was convicted of violating the Prohibition Law, and he appeals. Reversed and cause remanded.

J. W. McDavid, of Henderson, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.

HAWKINS, J.

This case is pending on motion for rehearing. Being convinced that our former opinion affirming the judgment is erroneous, the same is withdrawn and the present opinion substituted therefor.

Appellant was convicted under an indictment charging in the first count that he unlawfully possessed equipment for the manufacture of intoxicating liquor, and in the second count that he unlawfully possessed for the purpose of sale such liquor. His punishment was assessed at confinement in the penitentiary for one year.

The transaction out of which this prosecution grew is alleged to have occurred in February, 1924. The evidence shows this to have been the correct date. Three deputy sheriffs had testified that they had a warrant authorizing them to search the residence and premises of appellant, and they detailed before the jury what was found as a result of this search. So far as the record shows, the three officers were in good faith, and thought they did have a search warrant. After the deputies had testified, it developed from the sheriff that the officers did have a warrant authorizing them to search the premises of one Jones, and that while executing this warrant they received information which lead them to believe it would be expedient also to search the premises of appellant, who lived on an adjoining farm, and that he (the sheriff), without any semblance of authority, inserted in the search warrant the name of appellant. The officers then proceeded to appellant's premises and, without any warrant authorizing it, searched his residence and premises. It is not necessary to detail the things found there by the officers, further than to say some incriminating evidence was found in the residence and some near a well about 150 yards from the house. The discoveries made in the house and upon the premises support both counts in the indictment. After it developed upon the trial that the officers had no search warrant, appellant requested the court to withdraw from the jury the testimony which had previously been given by the officers as to the result of the search. This motion was overruled, being clear from the court's explanation to the bill that as the search was made prior to the Acts of the 39th Leg. relative to searches and seizures becoming a law, in his opinion the evidence should not be excluded.

Under authority of Welchek v. State, 93 Tex. Cr. R. 271, 247 S. W. 524, and the many cases following it, the evidence obtained by the officers was admissible unless the law passed by the 39th Leg. was available to appellant and defeated the use of such testimony. In article 691, P. C. (1925), it is declared that the search of a private dwelling occupied as such is forbidden unless upon a search warrant issued by a magistrate upon the affidavit of two credible persons showing that such residence is a place where intoxicating liquor is sold or manufactured in violation of the law. This article of the statute was enacted in 1919 (2d C. S., p. 238, § 35, 36th Leg.) to give effect to article 1, § 9, of the Bill of Rights, which reads as follows:

"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches; and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."

The 39th Leg., in chapter 149, p. 357, enacted a law the first section of which is an exact copy of that clause of the Bill of Rights just quoted. Section 2 of said act reads:

"It shall be unlawful for any person or peace officer, or state ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law." Article 4a, C. C. P. 1925.

Section 3 reads:

"Any person violating any provision of this act shall be deemed guilty of a misdemeanor and upon conviction shall be punished by fine of not less than $100 nor more than $500, or by confinement in the county jail not more than six months, or by both such fine and imprisonment." Article 4b, C. C. P. 1925.

The emergency clause embraced in section 4 of said act reads, in part, as follows:

"The fact that the people are not secure in their persons, houses, papers and possessions from unlawful and unreasonable seizures and searches, creates an emergency," etc.

The same Legislature (39th) by chapter 49, amended title 8, chap. 7, Code Cr. Proc. 1911, by adding article 787A, which reads as follows:

"No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the state of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."

The emergency clause of this act, being section 2 thereof, reads as follows:

"The fact that there has been used against citizens of this state evidence obtained in violation of the constitution of the state, and that there is now no statute expressly forbidding the same, creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and said rule is so suspended, and that this Act shall take effect and be in force from and after its passage, and it is so enacted."

In the Welchek Case, supra, it was pointed out that no statute penalized an illegal search; therefore the opinion was expressed that this court should not penalize such search by rejecting evidence of crime obtained thereby. From the opinion in that case we quote as follows:

"In our judgment, however, the proper decision of the question before us rests on the fact that there is nothing in the constitutional provision inhibiting unreasonable searches and seizures which lays down any rule of evidence with respect to the evidential use of property seized under search without warrant, nor do we think anything in said constitutional provision can be properly construed as laying down such rule. It seems to us that it is going as far as the provision of said constitution demands to admit that one whose property is wrongfully obtained in any manner, is entitled to his day in some court of competent jurisdiction and to a hearing of his claim for the restoration of such property, and for the punishment of the trespasser, or the announcement that the citizen may defend against such intrusion; but it must always be borne in mind, if there appear the fact that said property by its physical appearance upon the trial will aid the court in arriving at a correct conclusion in a criminal case, that the owner's right to the return thereof should be held in abeyance until said property has served the government, — the whole people, by its appearance in testimony. Nor can the rejection of the proffer in testimony of such property be soundly sustained upon the theory that the officer or person who removed such property having evidential value from the house or curtilage of its owner, should be punished for an entry into said premises without search warrant. To reject such evidence for such reason or to completely return same to the owner and relinquish jurisdiction over same, would in nowise be a punishment to the officer but would rather be a hurt inflicted upon the people whose interest in the punishment of crime suffers because the court may think the officer should be rebuked for the manner in which he obtained the evidence."

Both Acts of the 39th Leg. just referred to make it clear, we think, that it was the purpose of that body to supply the omission in the law pointed out by the decisions of this court, and especially in Welchek v. State, and to change the rule of evidence applied in that opinion and many others. The Legislature having seen proper to make this change, it is the duty of the court to interpret that law and unless invalid give it effect.

In the absence of constitutional inhibition, the Legislature may make an act a crime, whether moral turpitude is involved in the act or not. Ruling Case Law, vol. 6, p. 156, Ex parte Berger, 193 Mo. 16, 90 S. W. 759, 3 L. R. A. (N. S.), page 530, 112 Am. St Rep. 472, 5 Ann. Cas. 383. We are aware of no constitutional inhibition, either express or implied, obstructing the power of the Legislature to penalize a peace officer for making a search of the property of a citizen which was forbidden by the Constitution of the United States and of the state. Chapter 49, supra, prescribes a rule of evidence. In such an enactment the Legislature exercised a right which, by judicial decision, it has often been declared to possess. A pertinent illustration of the authority of the Legislature to prescribe rules of evidence as it is attempted in chapter 49, supra, is found in the enactment of the Legislature of this state declaring the possession of more than one quart of intoxicating liquor prima facie evidence that such liquor was possessed for the purpose of sale. This statute has been upheld in Stoneham v. State, 99 Tex. Cr. R. 54, 268 S. W. 156, and numerous other cases, and the principle approved by practically all states of the Union as shown by the report of the case of State v. Lapointe, 81 N. H. 227, 123 A. 692, 31 A. L. R. 1222.

It is likewise illustrated in the statute declaring that a conviction may not be had upon the uncorroborated testimony of an accomplice witness. See article 718, C. C. P. 1925. And the exemptions from the operation of the...