Moore v. State ( 1946 )

The State has filed a motion for rehearing in which it is urged (first); that we were in error in holding that the provisions of Art. 325 Cow. C. P. (which is set out in our original opinion) has application under the facts here present. It will be borne in mind that if a felony is committed in the view of an officer although done in a private residence the officer has the right to enter the residence and arrest the offender notwithstanding the inhibition against entering a private residence save under a warrant secured in compliance with constitutional and statutory provisions. See Agnello v. U.S. 70 Law Ed. 145, 269 U.S. 20; Hodges v. State, 107 Tex. Crim. 579,298 S.W. 573 Taylor v. State, 120 Tex.Crim. R.,49 S.W.2d 459. We are not to be understood as holding that officers are authorized upon "probable cause" from information reaching them to enter a private residence and search for alleged stolen property in the absence of a search warrant. It is not thought that Art. 325 Cow. C. P. goes to that extent. The State suggests in its motion that no case has been found in which our court has extended the provisions of said article to cover facts here found to exist. If there has been any case before this court with comparable facts it has escaped our attention. Here the officers were accompanied to the residence of the Holts by the man who sold them the diamond. He there told the Holts in the officers' presence what he had already told the officers, viz: that the diamond sold the Holts was stolen property. The Holts admitted that they had bought the diamond in question and the wife then had it on her finger but refused to surrender it to the officers. In attempting to secure possession of the stolen diamond at the Holt residence the officers were not acting upon "probable cause" but upon positive knowledge from admissions there made that the diamond was there present. It was not an entry of the residence without a warrant to search in order to ascertain if alleged stolen property was in the house, but to get possession of the property admittedly there present.

The State then (second); in its motion urges that if we adhere to our ruling that under the peculiar facts here present Art. 325 Cow. C. P. has application, and that the detention by the officers of Mr. and Mrs. Holt at their home and taking them to the City Hall in Ft. Worth where they had promised to surrender possession of the diamond, was legal; that their further detention then became illegal and became false imprisonment because the mandatory provisions of Article 217 and 325 Cow. C. P. were not complied with. Said article reads as follows:

"In each case enumerated in this chapter, the person making the arrest shall immediately take the person arrested before the the magistrate who may have ordered the arrest, or before the nearest magistrate where the arrest was made without an order."

"All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay."

The opinion of the Supreme Court of Texas in Heath v. Boyd,175 S.W.2d 214, and authorities therein cited are relied upon as supporting the State's position. In effect, the legal proposition there announced is that having detained Mr. and Mrs. Holt without a warrant of arrest or a search warrant, it was the positive duty of the officers to immediately seek a magistrate as directed by the statutes quoted, and that a failure to do so unexcused makes the further detention a case of false imprisonment. It might be insisted that the announcement in Heath v. Boyd was "dicta," but the legal proposition appears to be sound. See 19 Tex. Jur. p. 569, Sec. 23; 35 Corpus Juris Secundum, p. 546, Sec. 31.

We have adverted to the second ground of the State's motion for rehearing, but call attention to the fact that this phase of the case was not submitted to the jury, but the false imprisonment submitted for the jury's finding was based upon the theory only that it arose from the officers' actions at the residence of Mr. and Mrs. Holt. This being true, the grounds upon which reversal was predicated still appear to be controlling.

The motion for rehearing is overruled.