Banks v. State

Appellant vigorously insists that testimony as to his making whisky, seen by officers through cracks in the doors of his house, should not have been admitted. As far as the record discloses the house was in the open. The Supreme Court of the United States has often held that an officer may arrest, — or search and arrest, — when he discovers by the use of his senses facts supporting the proposition that a felony is being committed, — in substance and as applied to the facts of this case, — that whisky is being made or possessed. McBride v. United States, 284 Fed. 416; United States v. Rembert, 284 Fed. 996; In re Mobile, 278 Fed. 949. Authorities of other states are to the same effect. Earl v. State, 124 Ga. 28; State v. Lutz, 85 W. Va. 330. Numerous cases are collated by Mr. Branch in his Annotated P. C., Sec. 1979, announcing the right of any person, officer or otherwise to arrest one who commits a felony in his presence or within his view. Weaver v. State, 19 Texas Crim. App. 569; Leach v. State, 22 Texas Crim. App. 314. Under all of our authorities the right to arrest carries with it the right to search.

The motion for rehearing will be overruled.

Overruled.