Welchek v. State

Decision Date22 November 1922
Docket Number(No. 7136.)
Citation247 S.W. 524
PartiesWELCHEK v. STATE.
CourtTexas 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.

LATTIMORE, J.

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:

"The objection raised was to receiving in evidence certain private papers. These papers became important as tending to show the custody by the plaintiff in error, with knowledge, of the policy slips. The question was not made in the attempt to resist an unlawful seizure of the private papers of the plaintiff in error, but arose upon objection to the introduction of testimony clearly competent as tending to establish the guilt of the accused of the offense charged. In such cases the weight of authority as well as reason limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained. The rule is thus laid down in Greenleaf, vol. 1 § 254a: `It may be mentioned in this place that, though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.'

"The author is supported by numerous cases. Of them, perhaps the leading one is Commonwealth v. Dana, 2 Met. (Mass.) 329, in which the opinion was given by Mr. Justice Wilde, in the course of which he said: `There is another conclusive answer to all these objections. Admitting that the lottery tickets and material were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence, if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence, the court can take no notice how they were obtained, whether lawfully or unlawfully; nor would they form a collateral issue to determine that question. This point was decided in the cases of Leggatt v. Tallervey, 14 East, 302, and Jordan v. Lewis, 14 East, 306, note, and we are entirely satisfied that the principle on which these cases were decided is sound and well established.'

"This principle has been repeatedly affirmed in subsequent cases by the Supreme Judicial Court of Massachusetts, among others Commonwealth v. Tibbetts, 157 Massachusetts, 519. In that case a police officer, armed with a search warrant calling for a search for intoxicating liquors upon the premises of the defendant's husband, took two letters which he found at the time. Of the competency of this testimony the court said: `But two points have been argued. The first is that the criminatory articles and letters found by the officer in the defendant's possession were not admissible in evidence, because the officer had no warrant to search for them, and his only authority was under a warrant to search her husband's premises for intoxicating liquors. The defendant contends that under such circumstances the finding of criminatory articles or papers can only be proved when by express provision of statute the possession of them is itself made criminal. This ground of distinction is untenable. Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular or even in an illegal manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass he may be held responsible civilly, and perhaps criminally; but his testimony is not thereby rendered incompetent.' Commonwealth v. Acton, 165 Massachusetts, 11; Commonwealth v. Smith, 166...

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