Silver v. State

• Decision Date: 11 January 1928
• Docket Number: (No. 11108.)
• Parties: SILVER v. STATE.
• Court: Texas Court of Criminal Appeals

8 S.W.2d 144

SILVER v. STATE.

(No. 11108.)

Court of Criminal Appeals of Texas.

January 11, 1928.

Rehearing Denied June 28, 1928.

Commissioners' Decision.

Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.

J. R. Silver was convicted of robbery with firearms, and he appeals. Affirmed.

W. R. Parker, Clarence Parker, and Virgil R. Parker, all of Fort Worth, for appellant.

Jesse E. Martin, Crim. Dist. Atty., and Arthur Lee Moore, Asst. Crim. Dist. Atty., both of Fort Worth, and A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is robbery with firearms; the punishment death.

The fact that appellant and his companion, Stone, deliberately planned to rob Roscoe Wilson, the deceased, and that, in carrying into effect their unlawful design, Stone murdered and robbed him of a large sum of money, while appellant sat by in an automobile, is not controverted. After blotting out the life of their innocent victim, appellant and his companion fled with their ill-gotten gains to Oklahoma, where they were arrested. At the time of their arrest they were possessed of the spoils of the robbery. Each confessed. Not a mitigating circumstance appears in the record. Let this statement of the transaction suffice. A detailed statement of the testimony can serve no useful purpose.

In bill of exception No. 3, complaint is made of the receipt of the testimony of C. W. Bolan, police officer of Sulphur, Okl., to the effect that, upon the search of the automobile used by appellant, it was found to contain three pistols, a box of cartridges, and two suitcases, each containing $1,800 in currency.

No warrant authorizing the search of the car had been issued, and, in opposing the legality of the receipt of the testimony, appellant relied on article 1, § 9, of the Bill of Rights, forbidding unreasonable searches and seizures without probable cause, supported by oath or affirmation, and on articles 4a and 727a, C. C. P., which penalize an illegal search, and forbid the receipt of testimony touching such search.

The search was made in the state of Oklahoma by officers of said state. However, in disposing of appellant's contention, it is not necessary to decide whether the inhibitions of the Constitution and statutes relating to the subject of search and seizure are confined to the action of officials of our state.

The search of an automobile upon the public highway may be made without a search warrant where the seizing officer has knowledge or information of facts constituting "probable cause." Carroll v. United States 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762.

"Probable cause" has been defined as "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged." Landa v. Obert, 45 Tex. 539.

The recitals of the bill disclose that the officer had sufficient information before the search to constitute probable cause. Said officer testified, in substance, that he had heard over the radio that there had been a holdup and murder in Fort Worth; that he had also gotten over the radio a slight description of the men who committed the crime; that he saw appellant and a man who gave his name as Wilson in Sulphur, Okl., in a Chrysler coupé; and that, in a conversation they had with him in regard to roads, appellant told him that he was from Dallas, Tex., and that they were going to Shawnee, Okl.; that the description he had received over the radio "tallied up with these two men I saw there, this defendant and Wilson."

The record shows that, while the officers were near the car driven by appellant, appellant and his companion came up; that appellant started to get in the car, and that one of the officers told appellant he wanted to look him over; that the officers were holding guns on appellant and his companion; that they demanded that appellant open the back end of the car; that after appellant unlocked the back end of the car, the officers discovered satchels containing the stolen money, and that they thereupon told appellant that they would take him to town for further investigation; that appellant said he would drive his car back to town, and that one of the officers told appellant that he (appellant) could ride in his (the officer's) car; that appellant replied, "Damned if anybody drove his car back"; that the officer said, "No, you are going to ride in this car, and I don't want to have any argument out of you about it." The record further shows that in his voluntary confession appellant admitted that he committed the robbery, acknowledged the possession of the automobile he was driving when arrested, and acknowledged possession of the fruits of the crime and the pistols used in its commission. Furthermore, appellant was driving the car in question when first seen in Sulphur, Okl., by Officer Bolan, and, when arrested, had the key to the back end of the car in which the suit cases and money were concealed.

Appellant's contention, as shown by bill of exception No. 4, that the statements made by him to the officers immediately after the search of the car were inadmissible, for the reason that he was under arrest and the statutory requirements relating to confessions had not been complied with, cannot be sustained. Where a party is arrested, or sought to be arrested, for an offense, and resists the arrest, it is a legitimate fact to be proved. Mitchell v. State, 52 Tex. Cr. R. 37, 106 S. W. 124; Moreno v. State, 71 Tex. Cr. R. 460, 160 S. W. 361; Walker v. State, 74 Tex. Cr. R. 645, 169 S. W. 1156; Klein v. State, 102 Tex. Cr. R. 256, 277 S. W. 1074; Chester v. State (No. 11157) 108 Tex. Cr. R. 150, 300 S. W. 57, opinion delivered November 23, 1927.

Appellant further contends that the statements attributed to him by the officers constituted a confession of ownership of the automobile in which the stolen property was found. Such statements, in so far as they showed that appellant owned the car in question, were inculpatory, and constituted a confession in contemplation of article 727, C. C. P., if appellant was under arrest. Willoughby v. State, 87 Tex. Cr. R. 40, 219 S. W. 468. Under such conditions, the statements would have been inadmissible, in the absence of surroundings bringing them within the operation of the recognized exception to the inhibitions of article 727, C. C. P. In view of the fact, however, that appellant's possession of the car in question was shown beyond dispute by his voluntary confession, the statement made by him at the time of his arrest relative to ownership of the car was harmless. Pettiett v. State, 100 Tex. Cr. R. 255, 272 S. W. 473; Scharff et al. v. State, 99 Tex. Cr. R. 605, 271 S. W. 83; Villegas v. State (Tex. Cr. App.) 41 S. W. 610.

We perceive no error in the action of the court in permitting the state to prove by Officer Williams that, at the time of the arrest of appellant, he and other officers found three pistols in appellant's car. In qualifying bill of exception No. 5, which preserves the complaint in question, the trial court states that the testimony showed a .38 caliber bullet was taken from the body of deceased, Roscoe Wilson; that appellant's confession showed that the guns found in the car belonged to appellant and his companion; that two of the pistols, one a .38 caliber and the other a .32 caliber, belonged to appellant, and that a .38 caliber pistol belonged to appellant's companion; that the pistol belonging to appellant's companion had been recently fired.

After appellant had been arrested and placed in jail, he was placed in an automobile by the sheriff and district attorney, and directed said officials to a point in Dallas county where a money bag was concealed, which was later identified by witnesses as looking like the money bag taken from Roscoe Wilson at the time he was killed and robbed. As shown by bill of exception No. 6, appellant objected to the testimony of the sheriff touching this transaction.

Whether accused be in custody or not, or be warned or not, his oral or written confession is admissible, if in connection therewith he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. Branch's Annotated Penal Code, § 63; Wade v. State, 93 Tex. Cr. R. 364, 248 S. W. 382; Broz v. State, 93 Tex. Cr. R. 137, 245 S. W. 707. The court did not err in admitting the testimony.

As shown by bill of exception No. 7, appellant lodged...