Phœnix v. State

17 S.W.2d 829

• Court: Court of Criminal Appeals of Texas
• Decided: May 15, 1929
• Docket: No. 12569
• Status: Published

Opinion

LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

The owner of a stolen overcoat observed appellant in possession of and wear--ing said coat. He immediately "informed a magistrate of this fact. The latter caused the arrest of appellant, who was at once brought before said magistrate. Search of his person revealed the presence of several bottles of whisky and a pistol. The arrest without warrant was legal. Article 325, Code Cr. Proc. 1925; Burkhardt v. State, 83 Tex. Cr. R. 228, 202 S. W. 513; Porez v. State, 29 Tex. App. 618, 16 S. W. 750; Morris v. Kasling, 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 398. Under all the authorities one legally arrested may be legally searched. Washington v. State, 107 Tex. Cr. R. 214, 296 S. W. 512; Sandoval v. State, 106 Tex. Cr. R. 468, 293 S. W. 168; Paulk v. State, 106 Tex. Cr. R. 472, 293 S. W. 169; Hawley v. State, 107 Tex. Cr. R. 243, 296 S. W. 556; Coats v. State, 108 Tex. Cr. R. 301, 1 S.W. (2d) 288; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409. The finding of the pistol was part of the res gestee of the search and of the offense and was provable. Appellant was on a public street when first observed on the occasion in question. He was going along the street. When arrested a short time thereafter he had gone further along said street. We think the conviction for trang--portation of intoxicating liquor not without support. Objection to testimony of the search and its results was not well taken under the authorities above cited.

Finding no error in the record, the judgment will be affirmed.