
    PENCE v. STATE.
    (No. 9677.)
    Court of Criminal Appeals of Texas.
    June 15, 1927.
    1. Criminal law <&wkey;394 — Testimony obtained by illegal search before enactment of statute forbidding its receipt in evidence held inadmissible (Code Cr. Proc. 1925, art. 727a).
    Code Cr. Proc. 1925, art. 727a, forbidding receipt in evidence of testimony obtained by illegal search, held available to defendant, though transaction on which prosecution was based happened before its enactment.
    2. Intoxicating liquors <&wkey;249 — Automobile may be searched for liquor without warrant, if officers are possessed of sufficient facts to amount to “probable cause” (Const, art. I, § 9').
    Search of automobile for liquor may be made without search warrant, provided that in advance of search officers were possessed of sufficient facts to amount to “probable cause,” within Const, art. 1, § 9, which is reasonable ground of suspicion, supported by circumstances sufficiently strong to warrant cautious man in belief that automobile contained • intoxicating liquor illegally transported.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Probable Cause.]
    3. Searches and seizures <&wkey;7(27) — Requirement for search warrant or establishment of probable cause to justify search of automobile for liquor may be waived.
    Right of automobile owner to demand search warrant or establishment of probable cause before his automobile is searched for intoxicating liquors may be waived.
    4. Criminal law <&wkey;>736(l) — Whether defendant waived right to require search warrant or “probable cause” before allowing search of car for liquor held for jury.
    In prosecution for violating prohibition laws, evidence held sufficient to take to jury question whether defendant waived right to require search warrant or establishment of “probable cause” before allowing officers to search automobile for liquor.
    5. Criminal law <&wkey;783</2 — Refusal of charge not to consider evidence obtained In search of automobile without warrant, and without owner’s permission, held error, in' view of evidence.
    In prosecution for violating prohibition laws, refusal of charge not to consider evidence that car was searched and whisky found therein, if there was reasonable doubt that defendant did not give officers, who had no warrant, permission to search automobile, held error, in view of evidence.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Homer Pence was convicted of violating the prohibition laws, and he appeals.
    Reversed and remanded.
    Davidson, Blalock & Blalock, of Marshall, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, apd Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The original opinion is withdrawn. From the state’s testimony it appears that the appellant was seen, in company with a lady, driving an automobile upon one of the streets of the town of Marshall; that an officer, after seeing him and after getting a companion, got in his own ear and drove out on the road about 8 miles where the two observed the appellant and the lady some distance from the road in the act of eating or finishing eating a lunch. The’ appellant picked up a board which was nearby and began measuring the wheels of his car, which he stated when the officers accosted him were out of line.

Only one officer testified concerning the transaction. He said that the appellant was told that they .would like to search his ear. He asked them if they had a search warrant, and the officers told him that if they were not permitted to look into the car they would take him to the town of Marshall and obtain a search warrant. Appellant then said, “Never mind; go ahead and look in it; it is loaded.” He then handed the officer a key with which he opened the car and found it to contain whisky. •

Appellant’s wife testified:

“Mr. Pence called for a search warrant and they said: ‘We are rangers; we don’t need any search -warrant.’ My husband certainly did ' demand a search warrant. They searched Mr. Pence’s pockets to see if he had a gun, and Mr. Pence said the gun was in the car, and they searched Mr. Pence’s pockets and brought out a key. Mr. Pence told them the key belonged to the car, but he demanded that they not open the back of the car. Mr. Pence said: ‘How do we Know whether you are a ranger? You might he a hi-jacker.’ And then he said: ‘If you don’t give us that key and let us open that ear, we will take you. all down.’ Mr. Pence said: ‘Don’t open that car without a search warrant.’ Mr. Pence never gave them his permission to open that car without a search warrant.”

Appellant objected to the evidence of the officers showing the result of the search upon the ground that its receipt was in violation of article 727a, C. O. P. 1925, forbidding the receipt in evidence of testimony obtained by an illegal search; that is, a search made contrary to the laws of this state and of the United States.

Appellant requested a special charge which read as follows:

“You are charged that before an officer may search an automobile for any purpose, said officer must be armed with a search warrant to search that particular automobile, said search warrant having been legally procured. The officer who searched the defendant’s car did not have a search warrant. Now, if you believe from the evidence, or have a reasonable doubt thereof, that the defendant did not give the officers permission to search his automobile, but that said officers did search said automobile without the defendant’s permission, then and in that event I charge you not to consider the evidence that said car was searched and the evidence that whisky was found therein for any purpose whatever. And asked the court that the same be given to the jury, which the court refused to do, and the defendant then excepted to the decision of the court refusing to give said instruction, and tenders this bill of exception No. 6, and asks that the same be allowed and filed as a part of the record in this case.”

In writing the original opinion, the judgment was affirmed upon the assumption that article 727a, supra, not having been enacted until after the transaction upon which the prosecution was based, was not available to the appellant. A different conclusion was subsequently reached and expressed in several cases. Among them are Odenthal v. State (Tex. Cr. App.) 290 S. W. 743, and Sherow v. State, 105 Tex. Cr. R. 650, 290 S. W. 754.

We have also held in the ease of Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762, and Odenthal v. State, supra, that the search of an automobile may be made without a search warrant, provided that in advance of the search the officers are possessed of sufficient facts to amount to “probable cause,” as mentioned in article 1, § 9, of the Constitution; that is, a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the automobile contained intoxicating liquor illegally transported. We have further held that the right to a search warrant or the establishment of “probable cause” might be waived. Hall v. State, 105 Tex. Cr. R, 365, 288 S. W. 202.

In the present record, the state’s testimony might be sufficient to show a waiver. The appellant’s wife, however, testified to a contrary state of facts. The question of waiver therefore became a question of fact which should have been submitted to the jury under proper instructions. In our opinion, the right to a search and to give testimony of the result of the search depends in the present case upon the question of waiver or consent. For that reason, the special charge stated in bill No. 6 should have been given to the jury. In failing to do so, the learned trial judge committed error which necessitates .a reversal of the judgment.

The motion for rehearing is therefore granted, the order of affirmance is set aside, the judgment of the trial court is reversed, and the cause remanded. 
      
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