
    COATS V. STATE.
    (No. 11111.)
    Court of Criminal Appeals of Texas.
    Dee. 14, 1927.
    1. Intoxicating liquors &wkey;>249 — Statute held to contemplate necessity of search warrant to authorize search of either private dwelling, store, shop, hotel, or boarding house (Pen. Code, 1925, art. 69*1).
    Pen. Code 1925, art. 691, held, to contemplate necessity for search warrant to authorize search of either private dwelling, store, shop, hotel, or boarding house, only distinction being, where warrant is sought to search private dwelling, two affiants instead of one are required.
    2. Criminal law <&wkey;394 — In absence of valid warrant authorizing search, statute inhibits use of evidence obtained by search in liquor prosecution (Pen. Code 1925, art. 691; Code Cr. Proc. 1925, arts. 4a and 727a).
    Where no valid search warrant, as required by Pen. Code 1925, art. 691, and Code Cr. Proc. 1925, art. 4a, was issued for search of defendant’s dwelling, part of which was devoted to business purposes, evidence obtained as result of unlawful seach could not 'be used, under article 727a, in prosecution for possessing liquor for purpose of sale.
    3. Intoxicating liquors <&wkey;249 — Where there was no pretense of legal arrest without warrant, there was no right to search defendant’s dwelling for liquor without warrant (Code Cr. Proc. 1925, arts. 4a, 212; Pen. Code 1925, art. 691).
    Where there was no pretense of legal arrest of defendant without warrant, under. Code Cr. Proc. 1925, art. 212, there was no right to search defendant’s dwelling, part of which was devoted to business purposes, for liquor without warrant, under article 4a and Pen. Code 1925, art. 691.
    Appeal from "District Court, Schleicher County; J. E. Sutton, Judge.
    Etta Coats was convicted of possessing intoxicating liquor for the purpose of sale, and she appeals.
    Reversed and remanded.
    James Cornell and S. C. Autry, both of San Angelo, for appellant.
    A, A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for the possession of intoxicating liquor for the purpose of sale; punishment being one year in the penitentiary.

Appellant, with her children, occupied a house, part of which was used as their private dwelling, a part was let to roomers, and still another portion was devoted to'business purposes, where confections and cold drinks were sold. The sheriff procured a search warrant, and with other parties searched the premises, and found a small quantity of intoxicating liquor.

It was admitted upon the trial that the search warrant was invalid, and it was not relied on as authorizing the search. The trial was conducted as if no search warrant had ever issued; the sole contention on the part of the state b’eing that, if the searching officers were in possession of information amounting to “probable cause,” the search, was authorized in the absence of a warrant. If this contention is incorrect, the judgment must be reversed. We think the statutes settle the question against the state. Title 6, C. C. P., relates to procuring the issuance of search warrants generally. At the Second Called Session of the Legislature 1919, p. 238, the provision of said title 6 was supplemented by what is now article 691 of the Penal Code, and which reads as follows, with the parts not applicable deleted:

“A search warrant may be issued under title 6 of the Code of Criminal Procedure for the purpose of searching for and seizing and destroying any intoxicating liquor possessed, sold or to be sold * * * in violation of this law. * * * No warrant shall be issued to search a private dwelling occupied as such, unless some part of it is used as a store, shop, hotel or boarding house, or for some purpose other than a private residence, or unless the affidavits of two credible persons show that such residence is a place where intoxicating liquor is sold or manufactured in violation of the terms of this act. The application for the issuance of and the execution of any such search warrant, and all proceedings relative thereto, shall conform as near as may be to the provisions of title 6 of the Code of Criminal Procedure, except where otherwise provided in this title. * * * ”

It is plain that the Legislature by the foregoing enactment contemplated the necessity of a search warrant to authorize the search of either a private dwelling, store, shop, hotel, or boarding house; the only distinction being that, where the warrant was sought to search a private dwelling, two affi-ants instead of one were required. In 1925 (Laws 1925, c. 49, § 1, and chapter 149, §§ 2, 3) the Legislature still further supplemented the statute already in operation by the enactment of what is now found in the Code of Criminal Procedure as articles 4a, 4b, and 727a, and which articles are as follows:

Article 4a: “It shall be unlawful for any person or peace officer, or state ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law.”

Article 4b: “Any person violating any provision of this act shall be deemed guilty of a misdemeanor and upon conviction shall be punished by fine of not less than $100.00 nor more than $500.00, or by confinement in the county jail not more than six months, or by both such fine and imprisonment.”

Article 727a: “No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the state of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

The place searched in the present instance is one of those designated in article 4a. Construing that article in connection with art. 691 (Pen. Code 1925), the conclusion is not to be escaped that, in the absence of a valid warrant authorizing the search, article 727a (Code Cr. Proc. 1925) inhibits the use of the evidence obtained.

Article 690, P. C., declares “any animal, automobile, flying machine, airplane, boat, ship, or other vehicle or instrumentality used for the unlawful transportation or storage of intoxicating liquor,” to be a public nuisance, and authorized peace oflieers to seize without warrant any such instrumentalities used in their presence and view either for the unlawful transportation or storage of intoxicating liquor, or for the commission of any other act made penal by chapter 7 (title 11) of the Penal Code. Following Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, this court held in Odenthal v. State, 106 Tex. Cr. R. 1, 290 S. W. 743, that, if an officer was in - possession of information, or had knowledge of facts in advance of the search which amounted to “probable cause,” he would be authorized without a search warrant to search an automobile. The holding was based upon the theory that such a search was not “unreasonable,” and therefore not in violation of the Constitution or laws of either this state or the United States, and was in consonance with the spirit'Of the law as announced in said article 690. The necessity and reason for the distinction between .searches of automobiles or other movable in-strumentalities and dwellings, storehouses, or other fixed structures is very clearly stated in Carroll’s Case, supra, and quoted with approval in Odenthal v. State, supra, as follows:

“We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”

For convenience the reported cases which follow Odenthal v. State are collated here as follows: Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762; Whitworth v. State, 105 Tex. Cr. R. 641, 290 S. W. 764; Straley v. State, 106 Tex. Cr. R. 130, 290 S. W. 766; Fowler v. State, 106 Tex. Cr. R. 66, 290 S. W. 1104; Plant v. State, 106 Tex. Cr. R. 330, 292 S. W. 550; Reynolds v. State, 106 Tex. Cr. R. 391, 293 S. W. 178; Rochelle v. State (Tex. Cr. App.) 294 S. W. 860; Washington v. State (Tex. Cr. App.) 296 S. W. 512; Smyrle v. State (Tex. Cr. App.) 298 S. W. 598.

It is clear that the principle announced in Carroll, Odenthal, and other cases-following them has no application in the present case.

Article 212, Code Cr. Proc., authorizes a peace officer to arrest without warrant, where a felony is committed in his presence. Where a legal arrest occurs, the right to search follows. See Washington v. State (Tex. Cr. App.) 296 S. W. 512, and authorities therein cited; Sandoval v. State, 106 Tex. Cr. R. 468, 293 S. W. 168; Paulk v. State, 106 Tex. Cr. R. 472, 293 S. W. 169; Hawley v. State (Tex. Cr. App.) 296 S. W. 556. This principle has been applied many times by the Supreme Court of the United States. See Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 D. Ed. 145, and authorities therein cited. In the latter case government agents, looking through the window of a residence, observed a sale therein of narcotics." The entry of the house, the arrest of the party making the sale, and the search for, and seizure of, narcotics, were all held to be legal, in the absence of a search warrant. In the case now being considered there was no pretense of a legal arrest upon which the search could be predicated.

From what has been said it follows that the judgment must be reversed and the canse remanded, and it is so ordered. 
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