Taylor v. State

Offense, the unlawful manufacture of intoxicating liquor; penalty, four years in the penitentiary.

Searching officers approached the house of appellant and stopped where he was shining the lenses of his car. From this point they looked into appellant's house a few feet away and saw a still. There was a fire burning under the still, which was connected with a gasoline pressure tank. The testimony was that these pressure tanks made considerable noise and the officers could hear them burning before they got to the automobile. When the officers first walked up, appellant said, "By God, it's pretty good; I haven't even got to make a run, and I get knocked over." The residence of appellant was searched. Whisky was found running out of the coil into a fruit jar. The officers in addition to a 200-gallon still in operation found also fifty-three barrels of mash and nine gallons of whisky.

Objection was made to all testimony of the searching officers touching what was found in the house because they were not armed at the time with a search warrant. A search warrant under the recited circumstances was not necessary. A felony was being committed within view of the officers. This fact gave to the officers the right of arrest, which always carries with it the right of search. The exact contention made here was answered in the case of Banks v. State, 112 Tex.Crim. Rep., 14 S.W.2d 281, in the following language: "One of the officers was at the back door, the other at the front, when they saw what has been detailed. One of them had walked on the gallery of the house; the other stood by the door on the outside. Neither officer had been guilty of any unlawful act. In Steverson v. State, 109 Tex.Crim. Rep., 2 S.W.2d 453, we said: 'If without unlawful acts on their part things described in article 690, P. C., came to view of the officers, from which it was apparent that a felony was being committed in their presence, then a seizure without a warrant of the things being used to violate the law would be authorized. Under proper circumstances, this course is authorized by article 690, P. C., and article 212, C. C. P., and has been sanctioned under the decisions of this court and the Supreme Court of the United States in many cases. See Agnello v. United States,269 U.S. 30, 46 S.Ct., 4, 70 L.Ed., 148, 51 A. L. R., 409; Carroll v. United States, 267 U.S. 132, 45 S.Ct., 280, 69 L.Ed., 543, 39 A. L. R., 790; Marron v. United States (275 U.S. 192), 48 S.Ct., 74, 72 L Ed. (231); Hodge v. State, 107 Tex. Crim. 579,298 S.W. 573.' "

Moreover, the bills presenting this matter fail to manifest error in that they fail to affirmatively show the acts of the officers in approaching the house to have been illegal. Whitfield v. State, 104 Tex. Crim. 232,283 S.W. 857.

Some forty minutes to an hour after the officers' arrival at the residence and while still in same, a conversation between the appellant and his landlord was admitted over objection, the substance of which was that the landlord told him he had rented him the premises for a dairy and he had set up a still, to which appellant replied that he would fix everything all right. Appellant was under arrest at the time. It is no longer an open question that the statements of an accused while under arrest, if res gestae, are admissible against him. Powers v. State, 23 Texas Crim. App., 42, 5 S.W. 153; Jones v. State,111 Tex. Crim. 172, 11 S.W.2d 798, 800. The res gestae rule has been so far extended from its original limits that each case must be decided with reference to its own particular facts. Precedents on the subject for this reason are of little value. We are inclined to the view that the above statements were res gestae under the particular facts of this case and if not, we do not regard them as of such harmful character as would demand a reversal. They relate to proof of a fact otherwise overwhelmingly shown by the evidence and uncontroverted in the record.

Nor do we think the court erred in refusing to charge on circumstantial evidence. See case of Wilson v. State,116 Tex. Crim. 299, 31 S.W.2d 647.

Bills of exception appear to certain arguments of the prosecuting attorney. We are of the opinion that the bills show no error. Their importance to the bench and bar do not seem to justify a consumption of time and space in their discussion.

Finding no error 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.

Hawkins, J., absent.

ON MOTION FOR REHEARING.