Wolf v. State

• Decision Date: 13 June 1928
• Docket Number: (No. 11705.)
• Citation: 9 S.W.2d 350
• Parties: WOLF v. STATE.
• Court: Texas Court of Criminal Appeals

Page 350

9 S.W.2d 350

WOLF v. STATE.

(No. 11705.)

Court of Criminal Appeals of Texas.

June 13, 1928.

Rehearing Denied October 10, 1928.

Appeal from District Court, Burnet County; J. H. McLean, Judge.

J. D. Wolf was convicted for possessing a still for the purpose of manufacturing liquors, and he appeals. Affirmed.

A. L. Curtis, of Belton, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MORROW, P. J.

The conviction is for unlawfully possessing a still for the purpose of manufacturing intoxicating liquors; punishment fixed at confinement in the penitentiary for 2½ years.

Article 1, § 9, of the Constitution of Texas, reads as follows:

"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."

For the express purpose of giving effect to article 1, § 9, of the Constitution, the Legislature enacted article 4, C. C. P. 1925, the language of which is the same as article 1, § 9, of the Constitution; also article 4a, C. C. P. 1925, which reads thus:

"It shall be unlawful for any person or peace officer, or state ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law."

And article 4b, C. C. P., which prescribes a criminal penalty for the violation of article 4a, and article 727a, C. C. P. 1925, which reads as follows:

"No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the state of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."

Believing that there was an illicit still in the neighborhood of the dwelling place of the appellant, the sheriff and others in his company went to the vicinity and camped for the night. In the morning they walked four miles across the country to a 300-acre tract of land leased and occupied by the appellant. His dwelling house was situated near the Colorado river. The officers went to the Sycamore creek, where it ran through the appellant's inclosure. At a point about three-fourths of a mile from the dwelling house, the officers found a still, a quantity of whisky, and other material and equipment for making whisky. The appellant and one Joe Swift were present at the still and were placed under arrest. Before finding the still, they found a number of barrels of mash and a trailer. The barrels made a sort of inclosure. There was no fence. A path was found and also a wagon trail leading from the house at which the appellant lived and going towards the place where the still was found. The officers possessed no search warrant or warrant of arrest.

Appellant challenges the admissibility of the testimony of the officers to the facts above detailed and invokes the constitutional and statutory provisions above quoted. If the place and circumstances under which the discovery of the contraband articles were found were such as to come within the term "unreasonable search" as that term is used in the Constitution and statutes, the contention of the appellant must be sustained. Touching the meaning of the provisions of the law mentioned as relating to the facts under consideration, we have no pertinent precedents in this state. In other jurisdictions, however, there are found judicial interpretations of the meaning of the language mentioned which are deemed important as pointing to a correct solution of the legal questions here mentioned.

In the case of Brent v, Commonwealth, 194 Ky. 504, 240 S. W. 46, the Supreme Court of Kentucky had before it facts in substance as follows: Brent resided about four miles from Bardstown. Persons walking in the direction of Brent's residence turned into an unusual road leading to a ravine in the opposite direction from the residence. In the ravine a still was discovered in operation. After exchanging shots with the persons present, the still was destroyed. Relying upon the provisions of the Constitution quoted above, the testimony of the officers who destroyed the still touching its discovery and destruction was opposed, the appellant contending that the term "persons, houses, papers and possessions" embraced his farm and every species of property connected therewith. The court rejected this view and sanctioned the receipt of the evidence mentioned, pointing to precedents and giving reasons which would be interesting but too long to quote.

In the case of State v. Zugras, 306 Mo. 492, 267 S. W. 804, the Supreme Court of the state of Missouri had before it a state of facts showing that upon the appellant's farm about 150 yards from his house and concealed by brush and trees there was found a still. A path led from the still to the appellant's house and wagon tracks went from his barn. Citing and quoting from the opinion of the Supreme Court in the Brent Case, supra, the court held that the place...