Swanson v. State , 113 Tex. Crim. 104 ( 1929 )

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

Complaint properly directed at the legality of the search warrant had by the officers at the time they searched appellant's car, must be sustained. Said warrant was issued on November 10, 1927, upon the affidavit of two witnesses. It was not executed until November 17th. From the evidence heard it appears that on November 16th the officer who had said warrant, under permission of the issuing magistrate, changed the date of issuance thereof from November 10th to November 16th, and at the same time and with the same permission, he inserted in the affidavit matters further descriptive of the automobile alleged to belong to appellant. Art. 317 Cow. C. P., plainly and positively says of a search warrant, that it must be executed within three days from date of issuance, and this mandate of the statute was embodied and made part of the warrant itself in this case. Three full days after date of issuance on November 10, 1928, said warrant became functus officio, and we perceive no way by which life could be injected into it thereafter. We are not called on to discuss the question as to whether a new warrant could have been legally issued upon a legal affidavit on file in the office of the magistrate, after the demise by limitation of the unexecuted warrant. Under the facts before us in this case we must hold the warrant invalid, and the search, — in so far as its legality depended on the warrant, — to be also unauthorized. The question still remains in the case under the facts whether a warrant was necessary, and whether the evidence of the officers was properly received. Swanson had twenty-two half gallons of whisky in his car and was approaching Corsicana about 6:30 A. M. For some undisclosed reason the officers left Corsicana about 4:00 A. M. that morning and went down that road purposely to arrest this appellant. They said they "suspicioned" him. When appellant appeared he had the side curtains of his car down. The officers drove up beside his car. Officer Speed testified as follows:

"I stepped off the running board of our car onto the running board of Mose Swanson's car. I told Swanson that we wanted to look the car over. He said, 'You boys have got me.' I had told him before this that we wanted to look him over. He then made the remark, 'Boys, you have got me.' He made this remark to Pevehouse and myself. That is not all that he said at that time. He said that he had some mighty good liquor there. When I told him that we wanted to look him over, he responded then, 'You boys have got me.' "

This testimony is in no way disputed or contradicted. Appellant did not testify. We think such facts fully justified the action of the officers in searching appellant's car, upon probable cause and without search warrant. It follows that even if we hold the search warrant illegal, we must uphold the action of the learned trial judge in admitting the testimony of the officers as to what was found in the car. The statements of appellant, who was then engaged in the commission of a felony, were res gestae of the offense, and hence admissible without regard to the question of arrest. Weatherly v. State,109 Tex. Crim. 548; Haley v. State, 108 Tex.Crim. Rep.; Dixon v. State, 108 Tex.Crim. Rep..

When appellant told the officers that they had him, that he had some mighty good liquor there, this furnished sufficient basis for their search. Haynes v. State, 9 S.W.2d 1043; Pena v. State, No. 12046, not yet reported. In Haynes case, supra, we said that if the officers had heard appellant make a statement, attributed to him, before they searched, such admission in connection with what they saw, might have authorized a search. In Pena's case, supra, we held a search authorized by the admission of appellant to the officer that he had liquor in his suit case.

Finding no reversible error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.