Hawley v. State , 107 Tex. Crim. 243 ( 1927 )

Appellant was charged by complaint and information with searching the persons and personal possessions of Ike Chaffin and Lake Tankersley without having a search warrant. Upon conviction punishment was assessed at confinement in the county jail for one day.

Prosecution was under an Act passed by the Thirty-ninth Legislature (Chap. 149, p. 357), and brought forward in the 1925 Revised Code of Criminal Procedure, as Arts 4a and 4b, which read 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.

"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."

The statute in question is attacked upon the ground that searches are permitted by law under certain circumstances in the absence of a search warrant, the contention being that because this statute ignores these exceptions it renders it uncertain and vague, and by its terms furnishes no guide by which parties affected thereby may know when their acts would be unlawful and when not. The correctness of the principle contended for, namely, that certain searches are lawful even in the absence of warrant authorizing it cannot be denied, and has been recently recognized by this court in construing the very statute under consideration. (See Battle v. State, No. 10505, and Odenthal v. State, No. 9967, recently decided but not yet reported). We do not think the failure of the statute to take note of the exceptions renders it void. If the officer whose act is challenged can show he was operating within some exception which authorized the search without a search warrant he may interpose this as a defense to a prosecution under the statute.

Neither is it to be doubted that in many cases officers have the right to arrest without warrant, and whenever this right exists the right to search the arrested party also exists, but the search is justifiable only as an incident to a lawful arrest. Ruling Case Law, Vol. 2, Sec. 25, p. 467; Corpus Juris, Vol. 5, p. 434, Sec. 74; Agnello v. United States, 46 Sup.Ct. Rep. 4.

We find nothing in the facts of the present case to justify the arrest without a warrant and therefore no resulting right to search.

The judgment is therefore affirmed.

Affirmed.

ON MOTION FOR REHEARING.