After the officers had told appellant they had a warrant to search his car, if he said to them, "Go ahead," it could not be held that he had thereby consented to the search. Hall v. State, 105 Tex.Crim. Rep., 288 S.W. 202; Dixon v. Sate, 108 Tex.Crim. Rep., 2 S.W.2d 272; De Aguirre v. State, 7 S.W.2d 76; Monroe v. State, 110 Tex. Crim. 274, 8 S.W.2d 133; Jordan v. State, 111 Tex.Crim. Rep., 11 S.W.2d 323.
His consent thus given was a waiver of all defects in the search warrant under which the officers acted. See Hall v. State, 288 S.W. 202 and other cases cited. 2. — Same — Argument of Counsel — Defendant's Failure to Testify — Bill of Exception Incomplete.
Where it was shown that appellant when told by the sheriff that he desired to search his premises for whisky, replied "All right, go ahead, you won't find anything," such permission was sufficient to authorize the search. See Hall v. State, 288 S.W. 202. 5. — Same — Evidence — Material and Properly Admitted.
Consent to the search will not be inferred from such circumstances. See Dixon v. State, 2 S.W.2d 272; Hall v. State, 288 S.W. 202. 6. — Same — "Probable Cause" — Held Detrimental — Rule Stated.
HAWKINS, JUDGE. — The State, through the Hon. R. L. Crosier, County Attorney of Johnson County, files a motion for rehearing, asserting that the evidence shows a search made with appellant's consent, and insisting that such position is supported by Hogland v. State, 124 Tex.Crim. Rep., 62 S.W.2d 137, and Hall v. State, 105 Tex.Crim. Rep., 288 S.W. 202. In the case first mentioned officers met Hogland on the road before reaching his premises and upon being advised that they had a search warrant he told them they needed no warrant, to go ahead and search.
Rep., 11 S.W.2d 323; Hall v. State, 105 Tex.Crim. Rep., 288 S.W. 202. Owing to the disposition we are making of this case, we deem it unnecessary to pass upon the question raised by the appellant as to whether or not the wife, in the absence of and without the consent of her husband, can give permission to a search of the private residence of herself and husband, and upon that issue are expressing no opinion.
One may consent to the search of his premises and thereby waive irregularities in the search warrant, or dispense with the search warrant altogether. Hall v. State, 105 Tex.Crim. R., 288 S.W. 202. In Hall v. State, supra, officers went to Hall's premises and informed him that they had a search warrant.
It went further than a mere acquiescence on his part. He expressly stated to the officer that he did not need any search warrant and that he might go right ahead without one. That one may consent to the search of his premises and thereby waive irregularities in the search warrant or dispense with a search warrant altogether is well settled. Hall v. State, 105 Tex. Crim. 365, 288 S.W. 202; Williams v. State, 17 S.W.2d 56. In Hall's case, officers went to Hall's premises and informed him that they had a search warrant.
Many of appellant's bills are in the same condition. With reference to the particular bill mentioned we find that the officer testified that he had consent to search the car. See Hall v. State, 105 Tex. Crim. 365, 288 S.W. 202, in which many authorities are collated upon the question of the waiver of warrant. Appellant further complains that the court permitted leading questions to be asked by the state of its witness Hobbs. There is nothing in the bill to exclude the idea that Hobbs may have been a hostile or an unwilling witness.
This being true, the necessity for a search warrant was obviated. See Hall v. State, 105 Tex. Crim. 365. We also think the bills show no error.