
    JACKSON v. STATE.
    (No. 10040.)
    Court of Criminal Appeals of Texas.
    Jan. 12, 1927.
    Rehearing Denied June 8, 1927.
    1. Criminal law <&wkey;395 — Searches and seizures &wkey;»7(27) — Officers could search premises without warrant with owner’s consent, and liquors found were admissible in evidence (Acts 1925, o. 149, §§ 1-3; c. 49, § I; Const. Tex. art. I, § 9; Const. U. S. Amend. 4).
    Where defendant opened gate of his premises and invited officers in and'told them they could search all they wanted to, officers were not prohibited by Acts 39th Leg. (1925) c. 149, §§ 1-3, and chapter 49, § 1, Const. Tex. art. 1, § 9, and Const. U. S. Amend. 4, from searching premises without warrant, and liquors found thereon were admissible in evidence in prosecution for possessing intoxicating liquors for purposes of sale.
    2. Searches and seizures <&wkey;>7(5) — Only officers purposely searching private residence without search warrant are punishable under statute prohibiting searches without warrant (Acts 1925, c. 49, § I).
    Not every person is punishable under Acts 39th Leg. (1925) c. 49, § 1, who sees or finds evidence of crime on premises of another, but only officers who purposely search private residences without search warrant and in like manner who seize property of another are punishable thereunder.
    3. Criminal law <&wkey;736(l) — Trial court properly instructed that, unless search was with owner’s consent, evidence thus obtained could not be considered.
    In prosecution for possessing intoxicating liquor for purpose of sale, trial court properly instructed that, unless jury believed beyond reasonable doubt that search of defendant’s premises was with his free and voluntary consent, the liquor seized in search could not be received in evidence.-
    4. Intoxicating liquors <&wkey;236(l3) — Analysis of liquor two days after seizure held to warrant conviction of possession; delay not evidenc- ' ing increase of aleoholio content after seizure.
    Evidence that analysis of liquor two days after seizure disclosed alcoholic content by volume of 3.21 per cent, held to support conviction of possessing, as against contention that it did not show alcoholic content of 1 per cent, at time of seizure.
    Appeal from District Court, Kerr County R. H. Burney, Judge.
    Granville Jackson was convicted of possessing intoxicating liquor for purposes of sale, and be appeals.
    Affirmed.
    Lee Wallace, of Kerrville, and W. C. Linden, of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M: Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction in district court of Kerr county of possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

Section 1 of chapter 149, Acts Thirty-Ninth Legislature, is an exact copy of section 9, art. 1, of our state Constitution, and is as follows:

“The people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures or searches; and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath, or affirmation.”

It may not be amiss to call attention to the fact that the Fourth Amendment to the Constitution of the United States guarantees to all citizens immunity against unreasonable searches and seizures. The second section of said chapter 149 is as follows:

“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.”

Section 3 thereof provides a penalty for any person who violates the provisions of this act.

Chapter 49 of the Acts of said Legislature, in section 1 thereof, creates a new rule of evidence as follows:

“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.”

This new rule of evidence must apparently depend for its life and vitality on section 2 of said chapter 149, supra, for until its enactment, the courts of this state have not been called upon to go beyond the Constitution, which only forbade searches and seizures when unreasonable. It will be observed that chapter 149 is a general law, applicable alike to all persons, all officers, all state ranges, and to all searches of private residences, actual places of habitation, places of business, persons, and personal possessions of any person, at any or all times and places; and, if given that strict and literal effect contended for by appellant in this case, might entail disastrous consequences upon those seeking to enforce the laws against murder, theft, robbery, burglary, etc. It would seem beyond credence that any Legislature would intend that a peace officer, who is commanded by statute to arrest without warrant one who commits a felony within the view or presence of such officer, may not search the person of his prisoner and take from him weapons or stolen money, jewelry, etc., which may be so easily thrown away, lost, or secreted, if the officer in fact be required to hunt up a magistrate and obtain a search warrant before the prisoner could be searched; or that a peace officer, arresting a desperado, may not take from him knives, pistols, etc., without waiting to carry him possibly long distances in search of a magistrate before whom he should make an áffidavit as a predicate for such taking; or that a peace officer, upon representations of a credible person that a felony has been committed and the offender is about to escape, upon whom, under other statutes is placed the duty of pursuing and arresting without warrant such offender, would be confronted with the alternative of such delay as to make unlikely the capture of the offender, or else proceed to pursue and capture one whose person or car he could not search, to find evidence of the correctness of his information, and of the commission of the offense. In these instances just referred to, and many others where officers and other persons are commanded, for the purpose of preventing and detecting the commission of crime, to make arrests, and retake property, the literal and exact construction of this law, contended for by appellant, would render wholly ineffectual the efforts of the officers, or else make criminals of them, and, to give the same exact and literal effect to' chapter 49 referred to, would compel the courts to reject the evidence of officers who searched prisoners upon arrest, or who upon reliable information that robberies, thefts and holdups had been committed, pursued the fleeing offender and caught him in his flight' with the stolen property upon his person or in his car. Manifestly for such officer to be put to the delay of finding a magistrate and getting a search warrant for a man who, or whose car he cannot describe, and who is escaping, would set a premium on lawlessness. Nor can we think it ever intended by the Legislature that an officer arresting a desperate character under a warrant, must bring his prisoner to where he can get a search warrant before removing from the person of such prisoner pistols, knives, or other weapons, etc.; nor that a man who may be in the pasture of another i'and comes across stolen cattle or other property, or the slain form of some victim of a murder, must be held barred from giving outraged society the benefit of testimony as to what he has found, because forsooth he had no search warrant when he went fishing or started to take a walk.

This much is said because appellant contends in this case that there is nothing for the courts to do in regard to chapters 49 and 149 but to give a literal construction in every case to the language used, and hold the acts of the officers in this case unlawful because they had no search warrant when they entered his yard with his consent and upon his invitation, and found buried therein forty odd bottles of liquor.

The facts here show that federal officers with a search warrant searched the premises adjacent to those of appellant, and, his movements having attracted their attention, they concluded to go over and see what he was doing. He did not testify, but they testified that he met them at the gate and said, “Come on in and search all you want to,” and opened the gate, and that upon this invitation they entered, and, in searching, found the liquor above referred to. The direct question presented by appellant is that it is unlawful for a person to search the premises of another, even though the entry and search be with the consent and upon the invitation of the owner. We do not agree with this contention. Maldonado v. U. S. (C. C. A.) 284 F. 853; Meno v. State (Ind. Sup.) 142 N. E. 382; McClurg v. Brenton, 123 Iowa, 368, 98 N. W. 881, 65 L. R. A. 519, 101 Am. St. Rep. 323; Frix v. State, 148 Tenn. 478, 256 S. W. 449; Boswell v. State (Okl. Cr. App.) 222 P. 707; Commonwealth v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. R. A. (N. S.) 1056; 35 Cyc. p. 1265; Banks v. Commonwealth, 190 Ky. 330, 227 S. W. 455. In the case last mentioned the Court of Appeals of Kentucky held that an officer may search .one’s premises without an authorizing warrant, if it is done with the owner’s consent. It would seem needless to argue that, if the owner asked or invited a person, .whether an officer or not, to enter his private residence, premises, or place of business, such pea-son would have a perfect right to accept the invitation or to enter with such consent, and' that his entry would not be unlawful. It could hardly be believed that if, while such person, officer, etc., was ip such house or on such premises, he saw violations of the law or evidences thereof, -this would furnish excuse for his prosecution. So, also, it would seem incredible that any court should hold that such person might not testify as to the things he saw or heard. To hold otherwise would be to make the law a mock and the protector of all sorts of crime, and would bring endless confusion.

This' leads us to- the conclusion that the Legislature inserted section 1, supra, of chapter 149, to make the Constitution part of the law, purposing that said section should be considered in construing the application of said law in a manner in consonance with giving proper effect to existing statutes enacted for the protection of the life, liberty, and property of our citizens, the upholding of which are deemed necessary for the protection of the people, and it would seem fair to conclude that not every person is intended to be punished who sees or finds evidences of crime on premises of another, but only an officer who purposely searches the private residence, actual place of habitation, place of business, person, or personal possessions of another without search warrant and in like manner who seizes the property of another.

In the instant case we further note that the learned trial judge submitted to the jury the question as to whether the search was with the free and voluntary consent of the owner, instructing them that, unless they believed beyond a reasonable doubt that such was the ease, the evidence thus obtained could not be considered, and in such case under the facts a verdict of not guilty should be returned. The record discloses that no other evidence was found or presented save that which was obtained by the search of appellant’s yard, and under facts such as these the charge given by the trial court seems entirely correct.

Appellant makes the further contention that the evidence did not sustain the verdict, basing this on the proposition that it was not shown that the liquor contained 1 per cent, of alcohol by volume. The conviction was for possession of this character of liquor. The officers destroyed all of the liquor found but two bottles, which they turned over to one who analyzed same two days after its seizure, and testified that it contained 3.21 per cent, of alcohol by volume. Appellant’s contention seems to be that this does not exclude the possibility of there being such increase in the alcoholic contents of said bottles during the two days after the officers seized same, and before analysis, as might reduce the percentage at the time it was taken from appellant’s possession to less than 1 per cent. We are not inclined to believe the record in such condition as to support this contention.

The only other contentions of appellant are upon matters of law which have been held by this court in many eases contrary to his view.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant rests his motion upon the proposition that this court should be controlled solely by the language of articles 4a, 1925 C. O. P., and 727a, Id. This motion has been held up to enable appellant to find authorities which he thought he could find supporting his position, but none are cited. We are of opinion that the case was correctly decided in our original opinion.

The motion for rehearing will be overruled. 
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