Sutton v. State, 25678

• Decision Date: 30 January 1952
• Docket Number: No. 25678,25678
• Parties: SUTTON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 894

247 S.W.2d 894

157 Tex.Crim. 216

SUTTON v. STATE.

No. 25678.

Court of Criminal Appeals of Texas.

Jan. 30, 1952.

Rehearing Denied March 26, 1952.

Second Motion for Rehearing Denied April 23, 1952.

Rockey Harkey, Sinton, for appellant.

George P. Blackburn, State's Atty., Austin, for the State.

BEAUCHAMP, Judge.

Appellant was convicted of the offense of possessing a narcotic drug and sentenced to ten years in the penitentiary.

The state's evidence is to the effect that appellant was driving an automobile and at three o'clock in the morning he failed to stop at a stop sign on a farm to market road at the entrance to the main highway and thereby collided with an automobile driven by a boy named George James. The state's evidence by James was that he saw a flash of lights coming toward him, the collision immediately followed and the next he remembered was that he got up and saw appellant lying under the edge of the car driven by appellant. Both cars had landed in the yard of a nearby residence. Several people gathered about the scene of the wreck, the first of whom testified in detail about the things he saw. Near the driver's side of the front seat of appellant's car was a bag of something and he smelled marihuana.

Soon thereafter an officer arrived. He examined appellant who was in a great stupor and was belived by the officer to be under the influence of a narcotic. For running the stop sign appellant was arrested. An ambulance was called and appellant was delivered by the officer to the driver of the ambulance with instructions to take him to the hospital and keep him for the officer. The officer then examined the car and found in the bag which the witness had seen a quantity of marihuana. This was brought into court and definitely identified as the bag which the officer took from the seat of the car and it is shown that it contained marihuana.

We find in the statement of facts and in the transcript ten bills of exception. Each of these is based on the complaint that appellant was unlawfully arrested and that the officer illegally searched the car. It is contended that all evidence as to the marihuana was inadmissible.

There can be no claim that appellant was illegally arrested. The evidence is without dispute that the search was made after the arrest. It is a settled rule that a search warrant is not necessary in order to search the person of one under lawful arrest. 38 Tex.Jur., p. 73; Tones v. State, 48 Tex.Cr.R. 363, 88 S.W. 217, 1 L.R.A.,N.S., 1024, 122 Am.St.Rep. 759, 13 Ann.Cas. 455. Having a right to arrest and search appellant, he also had a right to search the car. Stokes v. State, 117 Tex.Cr.R. 307, 35 S.W.2d 727; Hayes v. State, 115 Tex.Cr.R. 644, 28 S.W.2d 556.

The second contention in appellant's brief is that the sheriff was permitted, over objection to testify as to the quantity of the marihuana, that is that it would make about a hundred cigarettes. This evidence, it is contended, is immaterial to the state's case. Appellant did not testify and offered no evidence in his behalf and we are unable to understand why the contention is made that it was harmful to his defense. It may be immaterial to the prosecution but it would likewise be immaterial to the defense. His guilt does not depend upon quantity. We see in it no reversible error. None appearing of record, the judgment of the trial court is affirmed.

On Appellant's Motion for Rehearing

Appellant's motion for rehearing emphasized the fact that the arresting officer was not present when the accident described in the opinion occurred. This we recognized. The question of the admissibility of the marijuana in evidence turns upon whether or not the arresting officer had authority under the statute to make the arrest. Our attention is called to the fact that the witness did not smell the marijuana until after the search had been made. In this our original opinion was in error. It is not the turning question in the case, however.

Article 803 of the Penal Code authorizes the arrest without a warrant, by any officer, of anyone violating the provisions of any of the various articles in the chapter into which that article is included. Article 801 of the same chapter is denominated the 'Law of the road'. That the appellant had violated the law of the road (see Note 5 of Vernon's P.C.Annotations) is perfectly apparent. The officer was not in view of the accident as it occurred, but he saw the accident in its fullness in that he appeared on the scene before the vehicles or the parties were removed from the positions in which they were placed by the collision. It was perfectly apparent to the officer what had occurred, as much so as if he had seen it occur. To hold that he could not make an arrest under this circumstance would so restrict the authority given to the officers under Article 803 of the Penal Code as to make the same practically ineffective. We have no power to enlarge the acts of the legislature and, with the same diligence, should strive to understand the purpose of the legislation and refrain from restricting it so as to make it ineffective.

The officer W. A. Kline, Jr., gave other evidence which, in our opinion, warranted his act in making the search. He testified that he had reason to believe that there was marijuana in the car. He stated, as shown by the bill:

'* * * Defendant, William Sutton, seemed to be pretty badly hurt and I would say that he was semi-conscious. I was told that his name was William Sutton and that he was supposed to live in Refugio. I would not have taken the road he was on at all if I were going to Refugio, because I would not have any business on that road if that's where I was going. I would say his, defendant's, conduct in running the stop-sign and being on the wrong road would indicate to me that something was wrong with him; I would say...