Welchek v. State
Decision Date | 22 November 1922 |
Docket Number | (No. 7136.) |
Citation | 247 S.W. 524 |
Parties | WELCHEK v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, Brazoria County; M. S. Munson, Judge.
Rudolph Welchek was convicted of transporting intoxicating liquor, and he appeals. Affirmed.
J. M. Gibson, of Houston, for appellant.
R. G. Storey, Asst. Atty. Gen., for the State.
Appellant was convicted in the district court of Brazoria county of the offense of transporting intoxicating liquor, and his punishment fixed at confinement in the penitentiary for a period of one year.
From the evidence it appears without dispute that appellant was arrested about the 22d day of April, 1921, by the sheriff of Brazoria county, who was accompanied by a number of other gentlemen. They appear to have been waiting and looking for appellant, who approached them driving an automobile in which was another party by the name of Kolar. Being stopped by the officer and search made of the automobile, three one-gallon jugs of whisky were found therein. It was admitted that the officer had no search warrant at the time. The liquor was taken in possession by the officer and was held by him at the time of trial, and one of the jugs was produced in court and exhibited to witnesses, who testified about its contents.
The question of search and seizure is now being raised in nearly all liquor cases tried in this state if the facts at all justify the defense in interposing objections relating to such question. Said question is squarely raised in the instant case. Before any evidence was offered on the trial appellant made a motion to have said liquor returned to him, and also prayed for an order that the testimony of the officers as to the finding of same be suppressed. This motion was denied, and proper exceptions taken, and the matter carried further during the trial by an objection to the introduction of the liquor, and to the testimony of the officer.
In determining the issues thus raised we decline to be drawn into a discussion of any federal authorities cited on behalf of the appellant, or into any criticism of same unless the question before us be in some way a federal question, and therefore subject to review at the hands of the Supreme Court of the United States, or unless the authorities cited be directly pertinent to the questions involved and be antagonistic to our own views. The cases of Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746, and Weeks v. New York, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, and Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647, go no further than to decide that in federal practice private papers of the accused obtained by federal officers by search and seizure without warrant will, upon motion made, be returned to the owner, and that testimony relative thereto be rejected or suppressed. In our judgment there is nothing involved in the instant case upon principle analogous to any of the cases named, nor is there any federal question here raised. We can see no possible parity or analogy of principle existing between the law governing the taking of private papers, the undeniable property of the owner, and the law governing a case in which the article seized is intoxicating liquor in which no property right inures under the express laws of this state. The case of Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654, advances no reasons applicable to a prosecution under our state laws and procedure, but, inasmuch as the subject-matter of that decision is similar to that of the case now before us, we respectfully state that we think the opinion in said case rests upon a misapprehension of the purpose of the Fourth Amendment to the federal Constitution, which is substantially the same as section 9, art. 1, of our state Constitution, and that the learned court was not justified in applying to the decision of the facts before it in the Amos Case, supra, the principles announced in the Weeks and Boyd Cases, supra. This court can in no event follow such an extension of the principle involved in said cases as appears in the attempted application thereof in the Amos Case, supra. The importance of the matter presented for discussion and the fact, as above stated, that the question is being so universally raised appears to call for a rather extended discussion and announcement by this court, and for that reason we venture an analysis of some of the cases cited and relied upon by appellant.
The opinion in the Weeks Case, supra, is by Mr. Justice Day, who also wrote for the court in Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575. We find ourselves unable to follow Justice Day in his effort at distinguishing the Weeks Case from the Adams Case. In the latter case an officer having a search warrant giving him authority to look into the house of Adams for policy slips found also therein private papers of Adams which he took, and which, over objection, were introduced upon the trial of Mr. Adams, wherein he was charged with having in his possession paraphernalia of the gambling game of policy. The complaint on appeal to the Supreme Court of the United States from the decision of the Supreme Court of New York was that the private papers obtained by the officers and used in evidence were seized and held in violation of the Fourth and Fifth Amendments to the federal Constitution. The Fourth Amendment referred to protects the persons, houses, papers, and effects of citizens of the United States against unreasonable searches and seizures, and provides that, if search warrants issue, they shall be on affidavit, and shall particularly describe the place to be searched and the persons or things to be seized. The Fifth Amendment referred to provides that no person in a criminal case shall be compelled to be a witness against himself. As illustrating the position of the Supreme Court with reference to the admissibility of the private papers so taken by the officers, we quote from the opinion in the Adams Case, supra:
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