Opinion
No. 12299.
Delivered May 8, 1929.
Possessing Intoxicating Liquor — Arrest and Search Without Warrant — Not Justified.
Whether officers entered upon appellant's premises without authority of law, for the purpose of searching him, and after one of the officers had grasped appellants arm, found whisky in his possession, which was not seen by the officers until after they grasped him by the arm, the arrest of appellant without a warrant was illegal, and the evidence obtained by virtue thereof, was inadmissible, under the provisions of Art. 727 C. C. P., upon his trial. See Hale v. State, 6 S.W.2d 762 and Stevenson v. State, 2 S.W.2d 453.
Appeal from the District Court of Stephens County. Tried below before the Hon. C. O. Hamlin, Judge.
Appeal from a conviction for the possession of intoxicating liquor for the purpose of sale, penalty one year in the penitentiary.
The opinion states the case.
V. L. Shurtleff, of Breckenridge, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
The offense is possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for one year.
Appellant's residence and garage were on the same lot, the garage being a distance of about 50 feet behind the residence. Officers went to the vicinity of appellant's residence at night. They saw appellant leave his garage and start toward his dwelling house. Whereupon they went upon the premises. After entering upon appellant's premises they noticed that appellant appeared to have something under his coat. One of the officers caught appellant by the arm and he dropped a fruit jar containing whiskey. No search warrant had been issued authorizing the officers to search appellant or his premises.
Proper objection was made to the testimony of the officers touching the result of the search on the ground that they had no search warrant ad that the search was therefore illegal. It is recited in the bill of exception and certified to by the court that the officers "could not tell" what appellant was carrying under his coat at the time they approached him. The objection was well taken. The officers had entered upon appellant's premises without authority of law for the purpose of searching him. The whiskey found in appellant's possession was not seen until one of the officers grasped appellant's arm. The liquor was not in their "view" until the unlawful entry upon appellant's premises had been made. Hence the arrest of appellant without warrant was illegal and the evidence obtained by virtue thereof inadmissible under the provisions of Article 727a C. C. P. Hall v. State, 6 S.W.2d 762; Steverson v. State, 2 S.W.2d 453.
Reversed and remanded.
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.