Opinion
No. 42327.
December 10, 1969.
Appeal from the Criminal Court, Dallas County, Ben Ellis, J.
Martin F. O'Donnell, Dallas, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
The offense is the carrying of an unlawful knife; the punishment, thirty (30) days in jail.
Officer Smoot who arrested appellant did not appear as a witness. The Officers who did testify stated that they received custody of appellant from Officer Smoot. They testified that appellant did not violate the law in their presence. Over objection, it was observed that a search of appellant's purse revealed the knife which is the basis of this prosecution.
The question of the legality of the search of appellant's person is one of constitutional dimension and should be considered by this court in the interest of justice under Section 13 of Article 40.09, Vernon's Ann.C.C.P.
In the absence of a showing of probable cause, the search of appellant's purse was not authorized.
For the error in admitting this knife over proper and timely objection the judgment of conviction cannot stand.
The judgment is reversed and the cause remanded.