Stokes v. State, 13708.

• Decision Date: 14 January 1931
• Docket Number: No. 13708.,13708.
• Citation: 35 S.W.2d 727
• Parties: STOKES v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W.2d 727

STOKES v. STATE.

No. 13708.

Court of Criminal Appeals of Texas.

January 14, 1931.

Rehearing Denied February 25, 1931.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Mat Stokes was convicted of the unlawful sale of intoxicating liquor, and he appeals.

Affirmed.

Kirby, King & Overshiner, of Abilene, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, P. J.

The unlawful sale of intoxicating liquor is the offense; penalty, confinement in the penitentiary for a period of two years.

A peace officer marked a $1 bill, and gave it to Mart Holman, with the instruction that it be used in the purchase of whisky at the appellant's place of business. The officer stood at a distance of about a block while Mart Holman went to the appellant's place of business. Mart Holman testified that she purchased from the appellant a pint of whisky, paying him therefor with the $1 bill and a 50 cent piece which the officer had given her. Upon the trial, she identified the appellant as the person who had sold her the whisky and to whom she had delivered the money. She also identified the place of business of the appellant as the place where the transaction took place. She said that there was a woman present whom she presumed to be the appellant's wife, though she did not know.

Immediately upon learning of the sale, the officer procured a warrant for the arrest of the appellant, and arrested him at his place. No search appears to have been made at that time. As soon as the officer had placed the accused in jail, a search warrant was procured and he proceeded to search the business house of the appellant where the sale was alleged to have taken place. It is the right of an officer making a legal arrest to search the place at which the arrest is made. Upon such search, the fruits of the crime and the things used in carrying out the criminal enterprise may be seized. See Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231. The right to seize marked money connected with the criminal act or intent is illustrated by analogy in many cases, and in some by specific identity. See State v. Lyon, 176 Iowa, 171, 157 N. W. 742; Furlong v. United States (C. C. A.) 10 F.(2d) 492, in which the property seized was a marked $1 bill received in payment of whisky sold. In the cases mentioned, the seizure of the money was in a search without warrant coincident with, or intimately connected with, the arrest. The seizure was not under a warrant, but upon the principle that without a warrant the seizure would be made incident to a legal arrest. No precedents have been discovered indicating that the right to search the premises in which the crime was committed would cease with the arrest. There are cases holding that, after the arrest of one accused of crime and his incarceration, a search of the premises without warrant would be illegal. Touching the soundness of which holding we express no opinion. The cases mentioned indicate that the contrary would be the rule if the premises were entered subsequent to the arrest under a valid search warrant. The Oklahoma case of Thomas v. State, 27 Okl. Cr. 264, 226 P. 600, due to the similarity of the facts, has specific bearing upon the announcement last above made, and the existence of the principle, as well as its application, is deemed supported by many authorities, to some of which reference is made in the following digest: Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231, with citation in the notes including marked money, Thomas v. State, 27 Okl. Cr. 264, 226 P. 600; liquor bottles, etc., United States v. Kirschenblatt (C. C. A.) 16 F.(2d) 202, 51 A. L. R. 416; copies of letters, Baron v. United States (C. C. A.) 286 F. 822; Id., 262 U. S. 749, 43 S. Ct. 524, 67 L. Ed. 1213; telegrams, Donegan v. United States (C. C. A.) 287 F. 641; permits and invoices, United States v. Kraus (D. C.) 270 F. 578; tents, harness, etc., Reutlinger v. State, 29 Okl. Cr. 290, 234 P. 224; implements, Rambo v. State, 38 Okl. Cr. 192, 259 P. 602; identification cars authorizing the purchase of liquor, Commonwealth v. Keister, 289 Pa. 225, 137 A. 223; ledger, etc., Marron v. United States, supra.

In the present instance, the search warrant used was one obtained under an affidavit in which it was alleged that the place to be searched was one in which "intoxicating liquors were sold and manufactured." As grounds of belief, the affidavit contains the following:

"That the particular facts, circumstances and statements as set out in this affidavit are within the knowledge of affiants true and correct; that in addition to affiants' own knowledge concerning the above described place and party, affiants are in possession of other information as follows: That Mart Holman, on March 3, 1930, bought a pt. of whisky from Mat Stokes and paid for same in part with a $1.00 marked bill marked `30' and numbered D76898157A and this affidavit and search warrant is intended to search for said marked $1.00 bill too. That said deft. has `rep't' of being a bootlegger; his place has often been reported to us as a place where liquor can be bought and is kept for purpose of sale."

The following contains the command embraced in the warrant:

"You are therefore commanded to forthwith search the above described place and premises and if you find the above described intoxicating liquors, property, containers, utensils, implements and instrumentalities or any portion thereof, you will seize and take the same into your possession and bring the same before me at my office in Abilene, Texas, in said County and State on the 3rd day of March, A. D., 1930, so that then and there the disposition of the same may be made as in such cases provided for by law; and you will also arrest and bring before me at same place and time the above-named or described party, who is alleged to be in charge and control of the above described place, and who is alleged to be violating the liquor laws of the State of Texas."

The warrant makes no reference to the $1 bill, and cannot, in our opinion, be treated as invalid because of the recitals in the affidavit. Assuming the validity of the search warrant, the officer executing it would seem authorized to seize the $1 bill which bore on its face, as viewed by the officer who marked it, its connection with the unlawful possession and sale of intoxicating liquor. Article 692, P. C., directs that intoxicating liquors or any personal property used for the purpose of violating the liquor laws of this state shall be seized...