Levine v. State

Offense unlawful transportation of intoxicating liquor, penalty one year.

An officer on the premises of appellant observed him and a third party approaching. When these parties saw the officer they started running and refused to stop when commanded. When appellant reached a fence he took a sack, which he had in his right hand, and struck it twice against the fence and threw it over the fence. Appellant was apprehended and arrested thereafter. Returning to the point where appellant was seen to strike the fence, the officer found what he testified was the identical sack with one whole jar of whiskey in it unbroken and three jars broken all to pieces.

Appellant introduced a witness who testified that he saw one Slim Smith in appellant's presence drop something in a sack near the fence and afterwards saw appellant when the officers got after him run up and hit something in a sack against the fence. It was appellant's theory that the sack which the officer afterwards found near the fence containing the whiskey was placed there by Smith and that he was entitled to an affirmative presentation of this theory to the jury by an instruction to acquit appellant if these facts were found to be true. We do not agree with this contention. If appellant and Smith were unlawfully acting together as principals in the, transportation of intoxicating liquor, as the record suggests they were, they were each and both guilty. In other words, the testimony does not present a defensive matter which necessarily entitled appellant to an acquittal, as pointed out by appellant's objections and exceptions to the charge. The court charged on circumstantial evidence and appellant may have been entitled to a charge on principals but this defect in the court's charge was nowhere pointed out and was not brought forward for review.

Many bills of exception were taken to the evidence of the officers as to what was found on the premises after his arrest, because the said officer was not armed with a legal search warrant. The affidavit and search warrant are not set out in the bills and the illegality of the search is set forth as mere statements of the ground of objections, the truth of which is not verified by the court. We are unable to determine from the face of the bills whether or not the search was illegal and nothing is therefore presented which we are able to review. Plunk v. State, 265 S.W. 158; Murff v. State, 281 S.W. 1076. We are inclined to the opinion that the facts show a legal right in the officer to arrest appellant which generally carries with it the right to search without a search warrant. Agnello v. U.S., 269 U.S. 20, 70 L. Ed. 145; Hodge v. State, 298 S.W. 573.

No reversible error appearing in the record, 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.