Comeaux v. State , 118 Tex. Crim. 223 ( 1931 )

In a motion for rehearing, accompanied by many citations of precedents and supported by a forceful argument, counsel for the appellant insists that this court erred in declaring that the trial judge was not in error in holding that the search warrant justified the search that was made in the garage in which the contraband liquor was found. In argument, the opinion in McTyre v. State, 19 S.W.2d 49, 113 Tex.Crim. Rep., is especially stressed. In McTyre's case, supra, application was made to search a "private residence". In executing the warrant issued upon the authority of the application mentioned, other buildings within the enclosure were searched and in one of them intoxicating liquor was found. The conclusion reached and expressed by this court in the McTyre case was that under the language of article 691, P. C., and title 6, C. C. P., and article 1, section 9 of the Constitution, the search of McTyre's outhouses was unauthorized for the reason that the description of the property in the affidavit and warrant was simply the private residence of McTyre. It is the principle there announced that the appellant, in his motion, contends should be applied to the facts of the present appeal. In the present case, in the application for the search warrant, the property to be searched is thus described:

"A certain place and premises situated in Jefferson County, Texas, described as follows, to-wit: A private residence, No. 1700 Brooklyn Street, City of Beaumont, Jefferson Co., Texas, the same being occupied and used by Walter Como others as a private dwelling."

It is further stated in the application that intoxicating liquor was kept for the purpose of sale and sold in said "place and premises". It was also stated that affiants ask for a warrant to search the above "place and premises."

The warrant followed the terms of the affidavits.

The evidence bearing upon the question, coming from the officers, is quoted as follows:

"We searched the house located at 1700 Brooklyn Street in the City of Beaumont in this county, where Walter Comeaux lives. We did not find anything in the house. Next I searched the garage right back of the house. It was between 40 and 50 feet from the house. It was on the same lot. There is a family lives upstairs over it; somebody lives up there. There was nothing on one side. The other side was nailed up. In it we found about 40 gallons of whisky. Walter Comeaux came upon the premises after we had found the whisky. No arrest was then made but he was arrested a day or two later."

Note is taken of the fact that in describing the property to be searched, it was called a "place and premises" designated as a private residence at 1700 Brooklyn street, and that in subsequent parts of the affidavit, the locality is described as "said place and premises". In the particular last mentioned the application differs from that in McTyre's case where the property was designated simply as a "private residence". That to the extent of the search the affidavit limits the warrant we have no doubt. The question occurs, does the language of the affidavit referring to the property as a "place and premises" include the other buildings used in connection with the dwelling and situated upon the same lot as the mansion house?

Seale's case, 39 S.W.2d 58, is somewhat analogous to the present. The term "premises" has, in legal parlance, a meaning so broad and varied that its interpretation in a given case is to a great extent governed by the context; that is to say, the manner of its use in the connection found tends to portray the intent with which it was embraced in the document. Illustrations are found in Words Phrases, 2nd Series, vol. 3, p. 1144. The same observation is applicable to the word "place". See Brawley v. State,114 Tex. Crim. 605, 26 S.W.2d 244; Smart v. State,115 Tex. Crim. 147, 27 S.W.2d 813; Words Phrases, 1st Series, vol. 6, p. 5383. In the present instance, under the facts before him, the trial judge construed the affidavit as giving the authority to search, not only the mansion house but the garage upon the same lot forming a part of the curtilage. See Wolf v. State, 110 Tex.Crim. Rep., 9 S.W.2d 350.

It was shown on the trial without controversy that the appellant admitted the ownership of the whisky found and the intent to sell it. The whisky was found in the garage building. The garage was used as a dwelling-place by some person whose identity is not disclosed by the evidence as brought before this court. It being a dwelling-place situated upon the lot described in the complaint and warrant, which lot was under the control of the appellant, it is not within the province of this court to declare that the garage was not a part of the appellant's dwelling and therefore within the specific designations contained in the affidavit and warrant. If the garage was not his dwelling but the dwelling of others, than the appellant or his family, he is not in an attitude to complain of the evidence obtained in the search. See Craft v. State, 107 Tex.Crim. Rep., 295 S.W. 617; Ramsey v. State, 108 Tex.Crim. Rep., 299 S.W. 411.

Based upon the observations made above and those set forth in the original opinion, we express the opinion that the motion for rehearing should be overruled, which is accordingly ordered.

Overruled.

ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.