Sherow v. State

This case is pending on motion for rehearing. Being convinced that our former opinion affirming the judgment is erroneous, the same is withdrawn and the present opinion substituted therefor.

Appellant was convicted under an indictment charging in the first count that he unlawfully possessed equipment for the manufacture of intoxicating liquor, and in the second count that he unlawfully possessed for the purpose of sale such liquor. His punishment was assessed at confinement in the penitentiary for one year.

The transaction out of which this prosecution grew is alleged to have occurred in February, 1924. The evidence shows this to have been the correct date. Three deputy sheriffs had testified that they had a warrant authorizing them to search the residence and premises of appellant, and they detailed before the jury what was found as a result of this search. So far as the record shows the three officers were in good faith, and thought they did have a search warrant. After the deputies had testified it developed from the sheriff that the officers did have a warrant authorizing them to search the premises of one Jones, and that while executing this warrant they received information which led them to believe it would be expedient also to search the premises of appellant, who lived on an adjoining farm, and that he (the sheriff) without any semblance of authority inserted in the search warrant the name of appellant. The officers then proceeded to appellant's premises and without any warrant authorizing it searched his residence and premises. It is not necessary to detail the things found there by the officers, further than to say some incriminating evidence was found in the residence and some near a well about 150 yards from the house. The discoveries made in the house and upon the premises support both counts in the indictment. After it developed upon the trial that the officers had no search warrant appellant requested the court to withdraw from the jury the testimony which had previously been given by the officers as to the result of the search. This motion was overruled, it being clear from the court's explanation to the bill that as the search was made prior to the Acts of the Thirty-ninth Legislature relative to searches and seizures becoming a law, in his opinion the evidence should not be excluded. Under authority of Welchek v. State, 93 Tex.Crim. Rep.,247 S.W. 524, and the many cases following it, the evidence obtained by the officers was admissible unless the law passed by the Thirty-ninth Legislature was available to appellant and defeated the use of such testimony. In Art. 691, P. C., (1925), it is declared that the search of a private dwelling occupied as such is forbidden unless upon a search warrant issued by a magistrate upon the affidavit of two credible persons showing that such residence is a place where intoxicating liquor is sold or manufactured in violation of the law. This article of the statute was enacted in 1919 (2d C. S., p. 238, Sec. 35, 36th Leg.), to give effect to Art. 1, Sec. 9, of the Bill of Rights, which reads as follows:

"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing as near as may be, nor without probable cause, supported by oath or affirmation."

The Thirty-ninth Legislature, in Chapter 149, p. 357, enacted a law the first section of which is an exact copy of that clause of the Bill of Rights just quoted. Sec. 2 of said Act reads:

"It shall be unlawful for any person or peace officer, or state ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law."

(Art. 4a, C. C. P., 1925). Sec. 3 reads:

"Any person violating any provisions of this Act shall be deemed guilty of a misdemeanor and upon conviction shall be punished by fine of not less than $100 nor more than $500, or by confinement in the county jail not more than six months, or by both such fine and imprisonment."

(Art. 4b, C. C. P., 1925.)

The emergency clause embraced in Sec. 4 of said Act reads in part as follows:

"The fact that the people are not secure in their persons, houses, papers and possessions from unlawful and unreasonable seizures and searches, creates an emergency, etc."

The same legislature (Thirty-ninth), by Chapter 49, amended Title 8, Chap. 7, C. C. P., 1911, by adding Art. 787a, which reads as follows:

"No evidence obtained by an officer or other person in violation of any provision of the constitution or laws of the state of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."

The emergency clause of this act, being Section 2 thereof, reads as follows:

"The fact that there has been used against citizens of this state evidence obtained in violation of the constitution of the state, and that there is now no statute expressly forbidding the same, creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and said rule is so suspended, and that this act shall take effect and be in force from and after its passage, and it is so enacted."

In the Welchek case (supra) it was pointed out that no statute penalized an illegal search. Therefore the opinion was expressed that this court should not penalize such search by rejecting evidence of crime obtained thereby. From the opinion in that case we quote as follows:

"In our judgment, however, the proper decision of the question before us rests on the fact that there is nothing in the constitutional provision inhibiting unreasonable searches and seizures which lays down any rule of evidence with respect to the evidential use of property seized under search without warrant, nor do we think anything in said constitutional provision can be properly construed as laying down such rule. It seems to us that it is going as far as the provision of said constitution demands to admit that one whose property is wrongfully obtained in any manner is entitled to his day in some court of competent jurisdiction and to a hearing of his claim for the restoration of such property, and for the punishment of the trespasser, or the announcement that the citizens may defend against such intrusion; but it must always be borne in mind, if there appear the fact that said property by its physical appearance upon the trial will aid the court in arriving at a correct conclusion in a criminal case, that the owner's right to return thereof should be held in abeyance until said property has served the government — the whole people — by its appearance in testimony. Nor can the rejection of the proffer in testimony of such property be soundly sustained upon the theory that the officer or person who removed such property having evidential value from the house or curtilage of its owner, should be punished for an entry into said premises without search warrant. To reject such evidence for such reason or to completely return same to the owner and relinquish jurisdiction over same would in nowise be a punishment to the officer but would rather be a hurt inflicted upon the people whose interest in the punishment of crime suffers because the court may think the officer should be rebuked for the manner in which he obtained the evidence."

Both acts of the Thirty-ninth Legislature just referred to make it clear, we think, that it was the purpose of that body to supply the omission in the law pointed out by the decisions of this court and especially in Welchek v. State, and to change the rule of evidence applied in that opinion and many others. The Legislature having seen proper to make this change, it is the duty of the court to interpret that law and unless invalid give it effect.

In the absence of constitutional inhibition, the legislature may make an act a crime, whether moral turpitude is involved in the act or not. Ruling Case Law, Vol. 6, p. 156, Missouri v. Berger, 3 L. R. A. (N. S.), p. 530. We are aware of no constitutional inhibition, either express or implied, obstructing the power of the legislature to penalize a peace officer for making a search of the property of a citizen which was forbidden by the constitution of the United States and of the state. Chapter 49, supra, prescribes a rule of evidence. In such an enactment the legislature exercised a right which, by judicial decision, it has often been declared to possess. A pertinent illustration of the authority of the legislature to prescribe rules of evidence as it is attempted in Chapter 49, supra, is found in the enactment of the legislature of this state declaring the possession of more than one quart of intoxicating liquor prima facie evidence that such liquor was possessed for the purpose of sale. This statute has been upheld in Stoneham v. State, 268 S.W. 156, and numerous other cases, and the principle approved by practically all states of the Union as shown by the report of the case of United States v. Lapointe, 31 Am. Law Rep. 1222.

It is likewise illustrated in the statute declaring that a conviction may not be had upon the uncorroborated testimony of an accomplice witness. See Art. 718, C. C. P. 1925, and the exemptions from the operation of the statute last mentioned, whereby the testimony of co-actors and persons criminally connected with violations of the law forbidding the transportation or the possession for the purpose of sale of intoxicating liquors, which has been upheld on numerous occasions. Other instances in which the same principle has been applied are found in the statute declaring the husband and wife incompetent witnesses against each other, and declaring persons charged with the same offense competent witnesses for the state but incompetent for the accused. Many other illustrations might be added. The soundness of the proposition that the legislature was acting within the scope of its authority in declaring evidence obtained by a search forbidden by the constitution of the United States and of the state and by the statutes of the state, could not be received in evidence, seems not open to question. The policy of the law is not a matter for judicial consideration. See Hopt v. People, 110 U.S. 574.

As heretofore stated, the transaction upon which the prosecution is based and the search of appellant's premises took place in February, 1924. The Acts of the Legislature (Chapter 149 and 49, supra) became effective in June, 1925. The trial took place in July of the same year. It is contended by the state that the evidence obtained through the search of appellant's dwelling-house and premises was admissible because at the time the search was made the Acts of the Legislature just mentioned were not in force. It is true that at the time of the search there was no penalty attached to the unauthorized act of the officers, but the search of appellant's residence without a search warrant was in violation of the fourth amendment to the constitution of the United States, and of Section 9 of Article 1 of the state constitution, which expressly forbids unreasonable searches and seizures, and of Section 35, Chapter 78, Acts of the Thirty-sixth Legislature, 1919, and carried forward as Article 691, P. C., revision of 1925, in which the search of a private dwelling exclusively used as such is forbidden except upon a warrant issued by a magistrate upon probable cause shown by the affidavit of two credible persons. Appellant's contention, therefore, that Chapter 49 (supra) being a procedure statute in force at the time of the trial, operated to exclude evidence obtained by a search illegally made at a time prior to the statute becoming effective, is sound. The question is discussed at length in Odenthal v. State, decided January 12, 1927 (No. 9967). The authorities are again collated here for convenience. Ruling Case Law, Vol. 25, p. 791, Sec. 38; Underhill's Crim. Ev., 3rd Ed., Sec. 11; Hopt v. Utah, 110 U.S. 574, 28 L. Ed. 262; Mallett v. N.C.,181 U.S. 594, 45 L. Ed. 1018; Rose's Notes on U.S. Rep., Vol. 12, Rev. Ed., p. 415; Mrous v. State, 31 Tex.Crim. Rep.; Askew v. State, 127 S.W. 1037; James v. State, 163 S.W. 61; McInturf v. State, 20 Tex. Cr. App. 355; Blount v. State, 31 S.W. 652; Wright v. State, 163 S.W. 976; Barnett v. State, 42 Tex. Crim. 306; Ybarra v. State, 164 S.W. 10; Thompson v. State,42 S.W. 949.

In searching the residence of appellant, the officers who testified against him acted without the semblance of right or authority. The search was contrary to the express prohibition in Art. 691, P. C. 1925, which was in effect at the time the search was made, and was also opposed to the constitutional inhibition against unreasonable search and seizure. Under the rule applied in the Welchek case, 93 Tex.Crim. Rep., the testimony would have been properly received. The express purpose of the legislature in passing Chapter 49, supra, was to change the rule applied by this court in the Welchek case, supra. The right of the legislature to do so is unquestionable. The precedents to that effect are without conflict. The legislature having, by constitutional methods, changed the rule of evidence, it was available to accused and operated to exclude the evidence illegally obtained. Obedience to the statute required its exclusion. The trial court having failed to exclude it, it is incumbent upon this court, in the discharge of its duty, to reverse the judgment of conviction to the end that accused may be tried in accord with the written law of the land.

No complaint is made of the matter now to be discussed, but we deem it proper to call attention to it. The court submitted both counts of the indictment, instructing the jury to state in their verdict under which, if either, they convicted. The jury ignored this instruction and returned a general verdict of guilty. Judgment was entered condemning appellant to be guilty of both offenses charged. The sentence follows the judgment. The learned trial judge should not have received the verdict after having instructed the jury to designate the count, but having received it, he should have applied the verdict to some one count which the evidence supported and not have undertaken by a single judgment to condemn appellant to be guilty of two separate felonies. Banks v. State, 93 Tex.Crim. Rep.,246 S.W. 377; Knott v. State, 93 Tex.Crim. Rep., 247 S.W. 520; Reyna v. State, 96 Tex.Crim. Rep., 247 S.W. 883. It being necessary to reverse the case for the other matters discussed, this question is only adverted to in order that the complication might not arise in the event of another trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.