Patrick v. State

301 S.W.2d 138, 164 Tex. Crim. 584, 1957 Tex. Crim. App. LEXIS 2196

Opinions

MORRISON, Presiding Judge.

The offense is felony theft; the punishment, two years.

Tommy Nichols, a filling station attendant, testified that the appellant and his female companion parked their automobile south of his station near the coca cola machine, the woman bought a coca cola, used the telephone, and while he was waiting on another customer, his attention was directed toward the appellant, whom he saw walking away from the station carrying two paper boxes which resembled cigarette cases with the tops cut off. The appellant placed the boxes in the back of his automobile and proceeded to leave but was detained by the witness, who reached in the automobile, lifted a newspaper which covered the boxes, and observed that they contained cartons of cigarettes. A struggle ensued, the witness secured the ignition keys from the appellant’s automobile, but the appellant finally effected his escape after his companion set the cases of cigarettes on the filling station driveway.

The cigarettes in the two boxes were shown to be of a value in excess of $100.00.

The appellant did not testify or offer any evidence in his own behalf.

The sole question presented for review is the appellant’s contention that the search of his automobile was unlawful. The witness Nichols testified that when they received a case of cigarettes at the station they cut the top off and placed it in a steel cabinet. He stated that when he first saw the two boxes in the appellant’s possession he identified the boxes as being of the same type as those in which they received cigarettes and that the tops had been cut off of them.

He testified further that when he came on duty that afternoon he had checked the cigarettes in the steel cabinet and found four cases, that shortly before the appellant’s arrival at the station he had sold a carton of cigarettes from the cabinet and noticed nothing missing, and that following the incident with the appellant he again checked the cabinet and found that it contained only two cases.

We have concluded that Nichols’ action in searching the appellant’s automobile was clearly authorized in order to prevent the consequences of theft. Article 325, V.A.C.C.P.

We further observe that the witness Pullam testified without objection concerning the search of appellant’s automobile.

Finding no reversible error, the judgment of the trial court is affirmed.