Lee v. State , 126 Tex. Crim. 18 ( 1934 )

The officers testified to the movements of appellant's car immediately prior to the search. It is not necessary to set out their evidence in this regard. It is sufficient to say it did not show probable cause to authorize the search of the car, and if such cause did exist it was because of what appellant said to the officers — according to their testimony — immediately preceding the search.

The following statement in appellant's motion for rehearing has challenged our attention: "We agree that the statements sworn to by the officers purporting to have been made by appellant would constitute probable cause if the same had not been denied by the appellant, but when he denied all of the material statements made by the officers it then became an issue of fact and should have been submitted to the jury."

Mr. Long, (a deputy sheriff) on direct examination, testified that he and Harvey (the sheriff) approached appellant and that the sheriff said to appellant: "I have a search warrant for your car," and that appellant replied, "Wait a minute, let's walk down this alley and talk this thing over;" that the sheriff said, "It is too late to talk now," and appellant said, "Well, you got me, I want a chance to get rid of it. * * * Well, don't look in it, let's drive the car wherever you want it." Mr. Harvey testified that the conversation was as follows: "I said 'I have a search warrant for your car' and he says 'I want to talk to you about it, I want a chance to get rid of it' and I said 'No, it is no use' and he said 'You have got me, it is no use to search.' I raised up the back end of the car there after he said 'You got me,' and he says 'You needn't look.' " The sheriff then looked in the back of the car and saw two boxes, the contents of which was found to be whisky after the car had been driven to the jail.

Appellant's defense was that he had loaned his car to one Sims a short time before the search; that no whisky was in the car when Sims got it, and that appellant had no knowledge that Sims intended to or had placed any whisky in the car. Appellant's version on direct examination of the conversation between him and the officers is as follows: "Mr. Harvey come up and motioned to me and said 'come here John.' I walked over to him and he says 'I have a search warrant for your car' and I says 'yes — there it is, go ahead' and he raised up the turtle back and says 'yes, here is whisky' and I says 'let me explain' and he said 'no, it is too late.' I do not know whether the car had whisky in it. I do not remember that I told the sheriff not to look in my car. I says 'all right, there it is' and he walked around and raised the turtle and says 'yes, here is whisky' and he says 'let's go' and I said 'give me a chance to explain this' and he said 'no, it's too damn late.' That conversation all took place after he told me he had a search warrant and when he said that I said 'all right, there it is.' I did not tell them that they need not search the car — I didn't say anything like that."

On cross examination appellant testified: "Jack Long and A. R. Harvey did not state to me before they made a search of the car that they had a search warrant to search my car and that I then said 'you have got me, there is no use to search it' or words to that effect — I remember no such conversation at all. That did not happen that I remember anything about; he says 'I have a search warrant for your car' and I says, 'yes, there it is.' I did not say to Harvey and Long 'let's walk down this alley to talk that over'; if anything was said like that I have no recollection of it; the only thing I remember about it is when Harvey said 'I have a search warrant.' I did not say 'let me get rid of this.' I did not say 'don't look in the car, you have got me' — nothing like that; he looked in the car as soon as he said he had a search warrant."

It does not appear from the record that the officers in fact had a search warrant, but only that they told appellant they had one. It is certified as a fact in bill of exception No. 1 that the State had not introduced any search warrant, but was relying upon probable cause for the search of appellant's automobile.

After the officers had told appellant they had a warrant to search his car, if he said to them, "Go ahead," it could not be held that he had thereby consented to the search. Hall v. State, 105 Tex.Crim. Rep., 288 S.W. 202; Dixon v. Sate, 108 Tex.Crim. Rep., 2 S.W.2d 272; De Aguirre v. State, 7 S.W.2d 76; Monroe v. State, 110 Tex. Crim. 274,

8 S.W.2d 133; Jordan v. State, 111 Tex.Crim. Rep.,11 S.W.2d 323.

It is apparent from the evidence of the officers and appellant set out above that there was a conflict in their testimony as to what was said by appellant after being told by the officers that they had a warrant to search his car. A sharp issue was raised as to whether the facts existed which were claimed by the State to constitute probable cause. It has been the uniform holding in our decisions that whether probable cause existed for the search of an automobile was a question primarily for the court, but if the existence of the facts claimed to constitute probable cause is controverted, it then becomes an issue for the jury under appropriate instructions. Hall v. State, 105 Tex.Crim. Rep., 288 S.W. 202; McPherson v. State, 108 Tex.Crim. Rep., 300 S.W. 936; Gordon v. State, 111 Tex.Crim. Rep., 12 S.W.2d 804; Hepworth v. State, 111 Tex.Crim. Rep.,12 S.W.2d 1018; Hurst v. State, 111 Tex.Crim. Rep.,13 S.W.2d 95; Weddle v. State, 112 Tex.Crim. Rep.,16 S.W.2d 244; McNeal v. State, 112 Tex.Crim. Rep.,17 S.W.2d 1050; Salinas v. State, 113 Tex.Crim. Rep.,18 S.W.2d 663; Filpot v. State, 114 Tex.Crim. Rep.,26 S.W.2d 202; Glenniwinkel v. State, 114 Tex.Crim. Rep., 21 S.W.2d 514; Borders v. State, 115 Tex.Crim. Rep., 27 S.W.2d 173; Maxwell v. State, 51 S.W.2d 334.

The failure of the court to submit to the jury the issue of probable cause was pertinently called to the court's attention in the second paragraph of appellant's written objections to the charge as follows: "The defendant objects and excepts to the Court's charge because it does not submit to the jury under appropriate instructions for their determination the issue of probable cause because there are controverted issues of the fact relating to the question of probable cause making it necessary that this issue be submitted to the jury for their determination, for the reason that the evidence of the officers, before beginning the search, shows that the only information they had was that the defendant had driven to two different points in town in his car and that they had no knowledge that it had liquor in it at any time, and the evidence shows that the movements of said car were not unusual, and because the evidence as to the conversation taking place after the defendant was informed that the officer would search his car under a search warrant, was not admissible on the issue of probable cause and if the same was admissible said statements were disputed by the defendant, and it therefore becomes an issue of fact to be determined by the jury as to whether or not probable cause existed at the time of the beginning of the search."

In addition to the foregoing objections, appellant requested a special charge on the same subject designed to supply the omission complained of.

Under the facts presented appellant was entitled to have the issue submitted to the jury, and the court ought to have supplemented his charge to meet the objection.

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

Reversed and remanded.