Williams v. State , 113 Tex. Crim. 219 ( 1929 )

The record having been perfected, the judgment of dismissal is set aside, the appeal is reinstated and the case considered on its merits.

Armed with a search warrant officers went to a pasture and found appellant near a still and among 14 or 15 barrels of mash. There were also 15 jars of whisky nearby. Fuel was at hand and it appeared that the still had been in operation. Appellant was uncovering the barrels of mash at the time the officers approached. He appeared to be tasting the mash. He had mash on his mouth and on his clothing. He told the officers that he had come upon the still and was merely interested in investigating it when they approached. According to a state's witness, appellant went to some parties after the raid and asked them to testify that he was fishing at the time of the raid. Another witness testified that appellant had brought a quantity of sugar to one Jim Rasco's house and that shortly before the raid he had taken some of the sugar away. It was further shown by the state's testimony that appellant had induced a witness to go to San Angelo in order that she might not be called upon to testify before the grand jury. We are of the opinion that the evidence is sufficient to support the conviction.

It was urged that the search was illegal, it being disclosed by many bills of exception that appellant contended that there were defects in the affidavit which made illegal the search warrant under which the search was made. The point where the still was found was in an open pasture. It was a mile from the nearest house to the still. It is unnecessary to determine whether the search warrant was legal. The case of Wolf v. State, 9 S.W.2d 350 controls. Discussing the question of unreasonable searches we said in Wolf v. State, supra:

"It is apparent from the precedents that the immunity from interference is founded upon the desire to give effect to the idea that a man's home is his castle'; that an unreasonable search is one which trenches upon the peaceful enjoyment of the house in which he dwells or in which he works and does business, and those things connected therewith, such as gardens, outhouses, and appurtenances necessary for the domestic comfort of the dwelling house or that in which the business is conducted. In its limitations, the immunity intended is analogous to that which applies to the curtilage of which the common law speaks, and does not render unreasonable the search of woods, fields, ravines, or open spaces not so connected with the place of business or dwelling, though owned by the same individual. See State v. Shaw, 31 Me. 523; Cook v. State, 83 Ala. 62, 3 So. 849, 3 Am. St. Rep. 688; Washington v. State, 82 Ala. 31, 2 So. 356; State v. Hecox, 83 Mo. 531; Cornelius on Search and Seizure, Section 25, p. 88. The land inclosed seems to have been rough and broken by hills and streams, but a small portion in the valley was in cultivation. The locality of the still was remote from the dwelling and apparently not necessary to the occupation or peaceful enjoyment of the dwelling, or in any way used in connection therewith"

It was error to admit in evidence the affidavit and search warrant. In view of the fact, however, that we find no recitations in said instruments which in our opinion could have influenced the jury to return a verdict of guilty, and, in view of the further fact that appellant received the minimum penalty for an offense which we think the evidence plainly shows that he committed, we would not feel authorized to predicate a reversal on the erroneous reception of such evidence.

A careful examination of appellant's contentions leads us to the conclusion that reversible error is not manifested.

The judgment is affirmed.

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.