
    HODGE v. STATE.
    (No. 10976.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    1. Searches and seizures <&wkey;3(6) — Search warrant issued on affidavit on information and belief without grounds showing probable cause held invalid.
    A search warrant issued on affidavit made on information and belief without grounds showing probable cause is invalid.
    2. Criminal law &wkey;>l 144(12) — Bills of exceptions not negativing existence of facts authorizing arrest without warrant, presumption that admission of testimony was correct was not rebutted.
    In'prosecution for possession of intoxicating liquor for purposes of sale, where bills of exceptions contained nothing negativing existence of facts authorizing defendant’s arrest without a search warrant for offense committed within officer’s view, legal presumption that court’s ruling in admitting testimony was correct is not rebutted.
    3. Arrest <&wkey;63(3) — Defendant seen drinking beer could be arrested by officer without warrant (Code Cr. Proc. 1925, art. 212).
    Arrest of defendant without a warrant held justified, in view of Code Cr. Proc. 1925, art. 212, where officer through open door of barn could see the drinking of beer by parties, including defendant, within the barn.
    4. Arrest <&wkey;63(3)— One committing felony in view of officer may be arrested without warrant- (Code Cr. Proc. 1925, art. 212).
    Under Code Cr. Proc, 1925, art. 212, one who commits a felony in the presence or view of an officer may be arrested without warrant.
    5. Criminal law &wkey;»394 — Liquor seized at time of arrest held admissible in evidence (Code Cr. Proc. 1925, art. 727a).
    Where officer was authorized to arrest defendant for possession of intoxicating liquor without warrant and liquor 'seized could have been seen by the officer through the open door of defendant’s barn, the liquor so seized was not inadmissible in evidence under Code Cr. Proc. 1925, art. 727a.
    Commissioners’ Decision.
    Appeal from District Court, Titus County; E. T. Wilkinson, Judge.
    
      Thomas Hodge was convicted of possession of intoxicating liquor for purpose of sale, and he appeals.
    Affirmed.
    Seb P. Caldwell, of Mt. Pleasant, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Ryles, Asst. Stated Atty., both of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for purposes of sale; the punishment confinement in the penitentiary for one year.

The record shows that a warrant for the search of appellant’s residence had been issued and placed in the hands.of the deputy sheriff. The affidavit upon which the search warrant was issued was made upon information and belief, and no grounds showing probable cause were exhibited therein. Under the holding of this court in the case of Chapin v. State (Tex. Cr. App. No. 10,670) 296 S. W. 1095, delivered on June 22, 1927, and not yet [officially] reported, the search Warrant was invalid. The officer, armed with this search warrant, searched appellant’s barn, where he found 60 bottles of beer and a 10-gallon jar of beer. He also found in the barn 75 empty bottles. The record does not disclose whether the 60 bottles of beer and 75 empty bottles were hidden from the view of the officer, but does show that the 10-gallon jar of beer was hidden in cotton seed. The record further does not show the proximity of appellant’s barn to his residence. The officer testified, in substance, that he saw somebody go to and come from the barn; that the appellant and two men were in the barn, and that some men were in the door; that the men were drinking beer; and that two or three of the men were intoxicated. The record does not disclose whether the door of the barn was open or closed, and furthermore does not show whether the officer saw the men drinking beer by looking through the door. The testimony of the officer further shows that there was a plain road beaten out to appellant’s house which had been used a great deal, and that this road showed that parties would drive up in appellant’s yard and turn around and go back into the main road.

It is shown by several bills of exception that appellant objected to the testimony touching the results of the search of his barn on the ground that the information obtained by the officer was through an illegal search and seizure, and that the evidence could not be admitted under the provisions of article 727a, C. C. P. The trial court overruled the objections and admitted .the testimony.

Appellant’s bills of exception complaining of the admission of the testimony of the officer embody substantially the facts hereinbefore set forth. The record shows that the officer saw men drinking beer in appellant’s barn under circumstances which would create within him the reasonable belief that appellant was committing a felony. The record does not show from what position the officer saw the parties drinking in appellant’s barn, nor does it show whether the 60 bottles of beer and 75 empty bottles were hidden from the view of the officer before the search was instituted. As far as appellant’s bills of exception manifest the conditions under which the arrest of appellant and search of his barn were made, all of the liquor obtained by the officer, except the 10-gallon jar of beer, could have been seen by him from without, through an open door; the drinking of beer by the parties within the barn could have been seen by the officer under the same conditions; and appellant could have been arrested by the officer and the bam searched contemporaneously wi1;h his arrest. The bills of exception contain nothing that would negative the existence of facts and circumstances which would authorize the arrest of appellant without a warrant for an offense committed within view of the officer. In this condition of- the record, the legal presumption that the ruling of the trial court, in admitting the testimony, was correct is not rebutted by appellant’s bills of exception. See Branch’s Annotated Penal Gode, § 207, p. 132. We are therefore constrained to hold that the arrest of appellant without a warrant was justified. One who commits a felony in the presence or view of an officer may be arrested without a warrant. Article 212, C. C. P. 1925; Moore v. State (Tex. Cr. App.) 294 S. W. 550.

The arrest of appellant being justified, the search of his barn was legal, and the evidence objected to was properly admitted by the court. s We quote from the case of Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, as follows:

“The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search ihe place where the arrest is made in order to find and seize things connected with the crime as its fruits, or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U. S. 132, 158, 45 S. Ct. 280, 69 L. Ed. 543, 553, 39 A. L. R. 790; Weeks v. United States, 232 U. S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652, 655, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177.”

See, also, Moore v. State (Tex. Cr. App.) 294 S. W. 550.

Finding no error, the judgment'is affirmed.

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