
    HALL v. STATE.
    (No. 10187.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1926.)
    L Intoxicating liquors &wkey;s249 — Consent to ' search waives irregularities in search warrant (Pen. Code 1925, art. 691).
    One may consent to search of his premises, 'and thereby waive irregularities'in search warrant issued under Pen. Code 1925, art. 691, or .dispense with search warrant altogether.
    2.Criminal law &wkey;o736(l) — Where facts relied ■ upon as waiver of irregularities in search ■ warrant are controverted, question of waiver ' is-for jury.
    Where facts relied upon as a waiver of irregularities in such warrant are controverted, ■ and possibly where language used is ambiguous, question of waiver is-for jury.
    3. Searches and seizures <&wkey;>7 -Where defendant told officers they did not need search warrant but to. go ahead and search, he waived irregularities in search warrant.
    Where officers told defendant they had a search warrant, and he said, “You don’t need any search warrant. Just go ahead and search anywhere you want to,” defendant waived any irregularities in search warrant.
    4. Criminal law &wkey;>394 — Where defendant waived irregularities in search warrant, evidence obtained by search was admissible.
    Where officers told defendant they had a search warrant and defendant told them they did not need a search warrant but to go ahead and search, he waived any irregularities in search warrant, and testimony relating to discoveries made upon search of premises was admissible in liquor prosecution.
    5. Criminal law <&wkey;>6l4(3) — Denial of second application for continuance for lack of diligence -to secure deposition of absent witness held not error.
    Where it appeared that there was a lack of diligence to secure deposition of absent witness, denial of second application for continuance was not error.
    Appeal from District Court, Bowie County; Hugh Carney, Judge.
    Bob Hall was convicted of possessing intoxicating liquor for the purpose of sale, and he appeals.
    Affirmed.
    W. W. Arnold and Crumpton & Boswell, all of Texarkana, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is the possession of intoxicating liquor for the purpose of sale; punishment fixed at confinement in the penitentiary for a period of two years.

Appellant, a farmer, resided upon a tract of land consisting of about 100 acres, upon which there were a number of outhouses and a dwelling house. One of the outhouses was described as a little store building, which seems to have been used at times for the purpose of furnishing articles to tenants and others. The premises were searched, and in the storehouse, which was some distance from the dwelling house, and in the barn, there were found a number of containers exhibiting the odor of whisky, and some of them containing whisky.' Behind the counter in the store building there were found ten quarts of whisky in fruit jars. There were other circumstances supporting the theory of the state that the whisky was possessed by the appellant for the purpose of sale.

The judgment is attacked from various angles on account of the alleged insufficiency of the affidavit upon which the search warrant was issued. The affidavit read as follows:

“Before me, G. W. Ragland, a justice of the peace in spd for said county, on this day personally appeared M. T. Goodwin and A. K. Neely who, after being by me duly sworn, on his oath, deposes and says: That he has good reasons to believe, and does believe, that Bob Hall is engaged in the unlawful sale of intoxicating liquors and keeps and possesses intoxicating liquors for the purpose of sale, at, in and near the following described place, building and structure:
“One residence and all premises and outhouses in and around said residence, located about twelve miles from Texarkana, on the H. Y. Beasley farm on the Index Road, Bowie county, Tex., and being the Bob Hall residence; that the sale of such liquors, and the keeping of same as aforesaid, is a common and public nuisance.”

In article 691 of the Penal Code, Revision of 1925, it is declared in substance that a search warrant may be issued in relation to violations of the law prohibiting the liquor traffic under title 6, C. C. P. The statute, however, contains the following language :

“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.”

Title 6, which has long been in the Code, relates t'o search warrants for.property taken by theft and other related matters, and permits their issuance upon the affidavit of one person stating under oath, among other things, “that he has good ground to believe” that the property was stolen by; the person named. Article 691, supra, was enacted in 19Í9, and the application for a warrant to: search a private dwelling occupied as such, and not otherwise used for the purposes mentioned above, differs materially from the application called for in title 6, in that in article 691 the affidavit must be made by two credible persons and must show that the residence described is a place where intoxicating liquor is sold or manufactured in violation of the law. The term “show” it is claimed has a significance different from that of “belief.”

The following citations show the distinction: Cooley’s Const. Limitations, p. 429; Veeder v. United States, 252 F. 414, 164 C. C. A. 338; People v. Elias, 316 Ill. 376, 147 N. E. 474; Swart v. Kimball, 43 Mich. 451, 5 N. W. 635. Upon the authorities above mentioned, it is also claimed that an essential requisite of a search warrant is that it show the facts upon which the belief is based. See Underhill on Crim. Ev. (3d Ed.) p. 1022, note 24, citing many cases. There are also many cases to the contrary. See the opinion of the Supreme Court of this state in Dupree v. State, 102 Tex. 464, 119 S. W. 301. These matters are not discussed in detail for the reason that the facts in hand do not seem to demand it, and the evidence is such as fbrms the basis of a serious question whether the search made was that of a private dwelling occupied as such within the meaning of article 691, supra. Upon that subject the precedents are somewhat conflicting. See Thompson v. State (Tex. Cr. App.) 96 S. W. 1085; Williams v. State, 48 Tex. Cr. R. 325, 87 S. W. 1155; Marks v. State, 51 Tex. Cr. R. 218, 101 S. W. 805; Hopper v. State (Tex. Cr. App.) 105 S. W. 816; Handy v. State, 46 Tex. Cr. R. 406, 80 S. W. 526; Reyes v. State, 51 Tex. Cr. R. 420, 102 S. W. 421; Mays v. State, 50 Tex. Cr. R. 391, 97 S. W. 703. See, also, Words & Phrases, Second Series, vol. 4, p. 338; 32 Ency. of Law & Proc, 357.

According to the uncontroverted evidence, the officers went upon the appellant’s premises and informed him that they had a search warrant,' whereupon he said: “You don’t need any search warrant. Just go ahead and search anywhere you want to.” This court understands that the legal precedents are to the effect 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. Such is the declaration in Cornelius on Search and Seizure, § 17, p. 73. The citation of authorities in the notes seems to support the text. However, the circumstances from which such waiver may be inferred present varied phases. See Cornelius on Search and Seizure, § 16, and notes, from which we quote :

“Where an officer politely and decently and without physical force has assumed to act in his official capacity, a peaceable citizen should not resist .the action even though he knows the officer is, as to the act, greatly exceeding*his authority. The courts have repeatedly held that acquiescence under such circumstances will not be taken to be a consent to an unlawful search or arrest, but merely a peaceable submission to an officer of the law.”

Among the'cases illustrating the text, holding that the mere acquiescence of the accused does not constitute a waiver, are Hampton v. State, 148 Tenn. 155, 252 S. W. 1007; Jordon v. Commonwealth, 199 Ky. 331, 250 S. W. 1004; Mattingly v. Commonwealth, 197 Ky. 583, 247 S. W. 938; Smith v. State, 133 Miss. 730, 98 So. 344. Among the cases in. which the circumstances have been deemed1 sufficient to establish a waiver are Gray v. Commonwealth, 198 Ky. 610, 249 S. W. 769, Maldonado v. United States (C. C. A.) 284 F. 853; United States v. Gouled (D. C.) 253 F. 242; United States v. Barry (D. C.) 260 F. 291; Perlman v. United States, 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 960; Commonwealth v. Tucker, 189 Mass. 457, 76 N. E. 127; Smith v. Commonwealth, 197 Ky. 192, 246 S. W. 449; Meno v. State (Ind. Sup.) 142 N. E. 382; Frix v. State, 148 Tenn. 478, 256 S. W. 449; Boswell v. State (Okl. Cr. App.) 222 P. 707; Cumpton v. Muskogee (Okl. Cr. App.) 225 P. 562; State v. Uotila, 71 Mont. 351, 229 P. 724. In a case where the facts relied upon as a waiver are controverted, and possibly ■where the language used is ambiguous, it would be necessary that the question of waiver be determined by the jury. See People v. Foreman, 218 Mich. 591, 188 N. W. 375; State v. Kanellos, 124 S. C. 514, 117 S. E. 640.

In the present instance, the,language imputed to the appellant is neither controverted nor ambiguous. It is more specific in favor of the waiver than that in seme of the .cases to which reference has just been made, notably Meno v. State (Ind. Sup.) 142 N. E. 382; Frix v. State, 148 Tenn. 478, 256 S. W. 449; Boswell v. State (Old. Cr. App.) 222 P. 707.

Upon the evidence adduced and the authorities mentioned, we are of the opinion that upon the doctrine of waiver the court was not in error in receiving the testimony of the officers relating the discoveries made upon •their search of the appellant’s premises.

The complaint of the denial of the second application for a continuance in the light •of the court’s explanation of the bill, from which it appears that there was a lack of diligence to secure the deposition of the absent witness, fails to show error.

In qualifying the bill of exceptions complaining of the remarks of the district attorney, the trial judge states that he cannot say that the language was used, and that his attention was not called to the matter or objection made at the time or special charge requested at the trial; that the first notice of the complaint came to him in the bill of exceptions presented in March following the adjournment of court in December.

We fail to perceive any reversible error in the trial.

The judgment is therefore affirmed. 
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