Beeland and Offutt v. State , 149 Tex. Crim. 272 ( 1946 )

The offense is robbery. The punishment assessed is confinement in the state penitentiary for a period of thirteen years.

Appellants bring forward five complaints, each by a separate bill of exception, in which they complain, first of the testimony of Burns, the injured party, who testified that within approximately two minutes of the time that he was robbed by the appellants, a police car appeared which was occupied by C. G. Conner and A. W. Hammock; that he informed them he had been robbed by two parties and gave them a description of the robbers, as well as a description of the car in which they had fled from the scene of the crime. The objection urged against this testimony is that it was a statement out of the presence and hearing of the defendants. We think that this was a part of the res gestae and was admissible as such. The witness Burns identified a certain billfold, three $20.00 bills, one $10.00 bill, one $5.00 bill, a classification card, a birth certificate, a driver's license, a pocket knife, and a hat check as being the property that had been taken from him by the defendants; to which appellants objected on the ground that the officers who arrested them and searched them and took the loot from them did not have a warrant of arrest or a search warrant; that by reason thereof the arrest was illegal and the property found as a result of the search was inadmissible in evidence, the same having been illegally obtained. The bills are qualified by the court who states in his qualification that the evidence showed that the officers came upon the scene of the alleged offense within less than five minutes after it had occurred; that Burns, the injured party, gave the officers a description of the men as well as of the automobile in which the robbers had fled; that they were pursued, and in less than fifteen minutes after the commission of the offense, they were under arrest. We think this evidence was admissible because, under the peculiar facts of this case, the arrest was authorized under Article 215, C. C. P., which provides as follows:

"Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused."

See Vaughn v. State, 134 Tex.Crim. R.; Rickman v. State, 138 Tex.Crim. R.; Bevins v. State, 110 Tex.Crim. R.; Lee v. State, 185 S.W.2d 978.

It is obvious from the qualifications of the bills that the officers did not have time to obtain a warrant of arrest since the defendants were fleeing with the loot; and it was only due to the speedy action of the officers that the appellants were arrested and searched. The Legislature, no doubt, in enacting Art. 215, supra, realized that an emergency might arise in which it would become necessary for an officer to arrest the offender without a warrant who was fleeing or attempting to escape. It is our opinion that the facts of this case bring it within the purview of the article hereinabove quoted. The right to arrest carries with it the right of a contemporaneous search of the person and, under some circumstances, of the place where the arrest occurs. See Lee v. State, supra; Bevins v. State, supra; Hodge v. State, 107 Tex.Crim. R., 298 S.W. 573.

Appellants' next complaint relates to the testimony given by the officers who arrested and searched them without a search warrant and to what they discovered as a result of the search. Since the arrest of appellants without a warrant, under the facts of this case was authorized, under the law, it carried with it the right to search; and evidence of the result of the search was admissible.

Appellants next objected to the testimony given by Conner relative to a conversation by means of the radio with the Police Department of the City of Amarillo in which he reported the robbery to the Department and gave them a description of the robbers, the automobile, the license number of the car, as well as a description of the loot with which the appellants were fleeing. Appellants also objected to the testimony of Brooks relative to the report which he received from the Police Department by means of the radio to the effect that a robbery had been committed; that the parties were fleeing or seeking to escape that he received a description of the car, the license number thereof, etc. Appellants' contention is that this was hearsay and should not have been introduced before the jury, but should have been heard by the court in their absence for the purpose of determining whether or not the arrest of the appellants without a warrant was authorized by the circumstances stated. However, the court instructed the jury as follows:

"The testimony of Robert Lee Burns and C. G. Conner, as to purported statements they testified were made by Burns to Conner, and the testimony of Conner and Oscar Brooks as to radio messages, was admitted only for the purpose of determination by the court whether Conner and Brooks were lawfully authorized to arrest and search the defendants, under the circumstances.

"You are therefore instructed that you must not consider nor discuss the said testimony, or any part of it, for any purpose against the defendants, or either of them."

The effect of the instruction was not only to withdraw the testimony from the jury but was also a determination by the court of the legality of the arrest of appellants. This action on the part of the court was tantamount to what the court should have done in the first instance, and therefore comes within the rule announced by this court in the case of Bingham v. State, 97 Tex.Crim. R..

No error appearing in the record, the judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.