Worth v. State

• Decision Date: 23 June 1928
• Docket Number: (No. 11517.)
• Citation: 12 S.W.2d 582
• Parties: WORTH v. STATE.
• Court: Texas Court of Criminal Appeals

12 S.W.2d 582

WORTH v. STATE.

(No. 11517.)

Court of Criminal Appeals of Texas.

June 23, 1928.

On the Merits, November 21, 1928.

On Rehearing, January 9, 1929.

Commissioners' Decision.

Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.

Richard Worth was convicted of an offense, and he appeals. Affirmed.

Florence & Florence, of Gilmer, for appellant.

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

MARTIN, J.

There being absent from the record a sentence, which constitutes the final judgment, we are without jurisdiction to pass on this case. Article 767, C. C. P.; Doyle v. State, 104 Tex. Cr. R. 582, 286 S. W. 214. See, also, collation of cases in Vernon's C. C. P. vol. 3, p. 150.

Appeal dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

MARTIN, J.

Offense, the unlawful possession of equipment for the manufacture of intoxicating liquor; penalty, one year.

This case was formerly dismissed because the transcript contained no sentence. Motion to reinstate same has been made, accompanied by properly certified copy of sentence, and appellant's motion is accordingly granted, and the case will be considered on its merits.

Officers entered appellant's premises without a search warrant and found one 10-gallon still and worm about 100 yards from appellant's residence in an orchard, a 50-gallon barrel about one-fourth full of mash about 150 yards west of his residence in an old fence row, and a 50-gallon still and worm on a little branch about 300 or 400 yards south or southeast of appellant's residence. Various bills present the question of the inadmissibility of this testimony.

Appellant contends that article 1, paragraph 9, of the Constitution of Texas, which guarantees security of his possessions from all unreasonable searches and seizures, and article 4a, C. C. P. 1925, and article 727a, C. C. P. 1925, were violated by the trial court in the admission of the evidence of the officers above related. There was no search of the private residence of appellant, in which case, under many decisions of this court, appellant's contention would be correct. It is apparently claimed that the search was illegal, because within the curtilage of appellant, and this is the question presented. A like question was exhaustively discussed in the case of Wolf v. State (Tex. Cr. App.) 9 S.W. (2d) 350. Many cases are therein cited and quoted from, some of which appear to be similar in their facts to the instant case. Particularly is this true of the case of State v. Zugras, 306 Mo. 492, 267 S. W. 804. In that case a still was found on the appellant's farm about 150 yards from a house, a path leading from such still to appellant's residence. It was therein decided that the place searched was not protected by a constitutional provision providing for immunity against unreasonable searches and seizures.

A constantly changing social and commercial life make it both difficult and unsafe to formulate an exact definition of the word "curtilage." We cannot safely apply its early English meaning alike to all modern cases. The obvious intent of protection against an unreasonable search within the curtilage was to give every citizen protection in the "peaceful enjoyment of the house in which he dwells, or in which he works and does business, and those things connected therewith, such as gardens, outhouses, and appurtenances necessary for the domestic comfort of the dwelling house, or that in which the business is conducted." This is plain, from the language used by Presiding Judge Morrow in the Wolf Case, supra, which is quoted in part immediately above. The meaning of curtilage should not be so restricted as to operate as a failure to protect the home against officious disturbers of its peace and quietude, nor so expanded as to make a refuge for criminals. The definitions of "curtilage" are differently stated, as appear from the following:

"The inclosed space immediately surrounding a dwelling house, contained within the same inclosure. * * * It has also been defined as `a fence or inclosure of a small piece of land around a dwelling house, usually including the buildings occupied in connection with the dwelling house, the inclosure consisting either of a separate fence, or partly of a fence and partly of the exterior of buildings so within this inclosure.'" Bouv. Law Dict. vol. 1 (Rawle's 3d Ed.) p. 741.

Also: "`Curtilage' is a yard, courtyard, or piece of ground lying around or near to a dwelling house, included within the same fence; a fence or inclosure of a small piece of land around a dwelling house, usually including the buildings used in connection with the house, which inclosure may consist wholly of a fence or partly of a fence and partly of the exterior side of buildings so within the inclosure." Words and Phrases (Second Series) vol. 1, p. 1183.

Giving effect to the intent and purpose of the constitutional guaranty against an unreasonable search, rather than to any technical definition of the word "curtilage," we are of the opinion that the facts of the instant case do not show an unreasonable or...