Odenthal v. State

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

On the 13th of March, 1923, appellant was seen by peace officers driving an automobile along the public road. Their suspicions were aroused, and after following him for a mile or two, they stopped him and told him that they would like to look in his car. He made no reply. They then opened the back end of the car and found that it contained a number of bottles of whiskey. They took the appellant and his car in custody. After reaching the jail, the whiskey was taken from the car by the sheriff who was not with the arresting party.

Against the receipt of the evidence, appellant invokes the acts of the legislature touching the searches and seizures embraced in Chapters 49 and 149, Acts of the 39th Leg., Reg. Session. In Chap. 49, supra, it is declared:

"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 trial of any criminal case."

In Chap. 149, supra, it is said:

"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."

Each of these laws became effective June 7, 1925. It is therefore manifest that at the time the search and seizure were made in the instant case, the statute making such search and seizure unlawful was not in force. However, both of the above-named statutes were in force at the time of the trial.

Appellant insists that upon the principles applied in Mrous v. State, 21 S.W. 764; Askew v. State, 127 S.W. 1037; James v. State, 163 S.W. 61, the court was in error in receiving the testimony in the instant case.

Mrous v. State, supra, was a case of seduction. At the time the unlawful act took place, the law prohibited the receipt in evidence of the testimony of the prosecutrix. Subsequently and before the trial, the law was changed so as to render the testimony of the prosecutrix admissible against the accused. The court decided that in receiving the testimony of the prosecutrix no error was committed.

In Askew's case, supra, it appeared from the development of the facts that appellant had made a verbal confession. At the time the offense was committed and at the time the confession was made, the law permitted the receipt in evidence of a verbal confession. Subsequently and before the trial, however, the law was amended so as to exclude the verbal confession and demand that it be in writing. See Art. 810, Vernon's Tex.Crim. Stat., Vol. 2, p. 750. This court held the confession inadmissible.

In James' case, supra, at the time the offense was committed, the practice permitted an exception to the charge to be made after verdict. Subsequent to the commission of the offense and before the trial, the law was amended as embraced in Art. 737a, Vernon's Tex.Crim. Stat., Vol. 2, p. 497, which required exceptions to the charge of the court to be made before verdict. It was held that the amended act controlled and that the court would not consider objections to the charge not presented before verdict in accord with Art. 737a, supra.

In the Mrous case, supra, are found several citations of authority defining ex post facto law, from one of which citations we quote:

" 'I will state what I consider ex post facto, within the words and intent of the prohibition:

" 'Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.

" '* * * But I do not consider any law ex post facto, within the prohibition, that modifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment, or change the rules of evidence for the purpose of conviction.' " (Murray v. State, 1 Tex.Crim. App. 428.)

To the mind of the writer, the soundness of the announcement in the Mrous case, supra, is questionable for the reason that after the commission of the offense, a statute was passed allowing the state to convict the accused upon testimony which would not have been usable for that purpose at the time the offense was committed. In other words, it changed the rules of evidence "for the purpose of a conviction." The Askew case, on the contrary, changed the rules of evidence in the interest of the accused and rendered unavailable to the state testimony which it might have used against the accused at the time the offense was committed. The James' case occurs to the writer as applying a sound rule in that it touched no rule of evidence but merely the matter of procedure upon the trial with reference to the manner of excepting to the charge of the court.

Appellant maintains that his contention is not answered by the fact that at the time of the alleged offense, Chap. 149, defining an unlawful search and providing the punishment therefor, and Art. 49, forbidding the use of evidence obtained, were not in effect for the reason: first, that under the principles applied by this court in Askew's case the subsequent passage of the statute mentioned inured to his benefit; and second, for the reason that independent of Art. 149, an unreasonable search was unlawful by virtue of Sec. 9, Art. 1 of the state constitution. In Welchek's case, 93 Tex. Crim. 277, it was held, on many precedents, that evidence obtained by an authorized search was not to be excluded upon that ground alone. In that case it was said:

"Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular, or even in an illegal manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass he may be held responsible civilly, and perhaps criminally; but his testimony is not thereby rendered incompetent."

The holding in the Welchek case, supra, is in substance that the public is entitled to evidence of crime notwithstanding the evidence may have been obtained by an unauthorized act.

Touching the claim of the appellant that as the law stood at the time of his trial, evidence previously obtained by an unreasonable search could not be properly received is not deemed essential to the decision of the case in hand for the reason that the search and seizure revealed by the present facts seem authorized by both the state and federal laws.

In Art. 690, P. C., 1925, any "automobile used for the unlawful transportation of intoxicating liquor" is declared to be a public nuisance; and "any automobile used in the presence and view of any peace officer of this state for the unlawful transportation of intoxicating liquors shall be seized without a warrant" by such peace officer.

The provisions of Chap. 149, supra, are brought forward in Art. 4a, C. C. P., 1925. In Art. 4a, the search of "personal possessions" without a search warrant is declared unlawful. We understand the law to demand that both of these statutes (Arts. 4a and 690), so far as they are not in direct conflict, to be given effect. Applying this principle to the general provisions of Art. 4a regarding the search of "personal possessions," so far as it might relate to an automobile in which intoxicating liquors were at the time unlawfully transported, would be controlled by the specific provisions of Art. 690, P. C., 1925, which are quoted above and in which a seizure, without warrant, is authorized by a peace officer in whose presence an "automobile" is used in the unlawful transportation of intoxicating liquor. If this analysis is correct, the circumstances of the present transaction, in connection with the state law mentioned, authorized the seizure, without warrant, of the automobile and the intoxicating liquor therein contained, which were unlawfully transported in the presence of the peace officer. Whether the seizure was in violation of the federal law, we find in the interpretation by the Supreme Court of the United States, in its most recent decision upon the subject, (Carroll v. United States, 69 Law Ed., p. 543), that the seizure of an automobile and its cargo of whiskey under circumstances such as those revealed in the present record was held not in violation of the law or the Constitution of the United States. From that decision we quote:

"In the light of these authorities, and what is shown by this record, it is clear the officers here had justification for the search and seizure. This is to say, that the facts and circumstances within their knowledge, and of which they had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched."

We are constrained to hold that upon the facts in the present case, the court was not in error in receiving the testimony of the officers who seized the whiskey in the jar which the appellant was transporting in his automobile.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.