Mason v. State

CHRISTIAN, Judge. The offense is transporting intoxicating liquor; the punishment confinement in the penitentiary for one year. Albert Sidney Martin and Walter E. Evetts were Border Patrol Officers employed by the Immigration Service of the United States government. They were stationed in the city of Laredo. They were authorized to arrest aliens found attempting to illegally enter the United States and to search any vehicle in which they believed aliens were being brought into the United States. They had received information that intoxicating liquor and aliens were being smuggled across the Rio Grande River near Laredo. Pursuant to such information they went to a clandestine crossing on the river and viewed the roads used by automobiles in reaching such crossing. They found a landing place at such crossing and near it grass sacks and hay wrappings from bottles. A few days later they returned to the vicinity of the crossing and concealed their automobile near a gate which entered a lane traveled by those going to the river. Shortly after concealing themselves they saw a car drive to the river. It returned in about forty minutes. In the meantime the officers drove their car to the gate in order that the returning car might be blocked. Upon seeing the officers, the occupants of the car suddenly stopped and one of the occupants jumped out of the car and ran. Evetts pursued him and in a short while brought him back to the car. Martin approached the car with his hand on his pistol. Martin wore an officer’s uniform. Appellant was seated in the car with his hands raised above his head. On reaching the side of the car Martin saw some bottles on the seat wrapped in hay. One bottle did not have any wrapping on it. He could see the necks of *488 all of the bottles. Martin asked appellant what he had in the car and appellant stated to him that he only had four or five quarts. Martin then stated to appellant that if he had no objection he would like to raise the lid at the back end of the car and make a search. Appellant stated, “I will tell you four or five bottles is all I’ve got.” Appellant then gave Martin the key to the back end of the car. Martin raised the lid and found twenty-three bottles and eight five-gallon cans of intoxicating liquor. The bottles contained peach brandy, apricot brandy, cognac, champagne and vermuth. Mason and his companion were then taken to the Border Patrol Office by the officers. In arresting appellant and searching his car, the officers acted without a warrant of any character. Upon a hearing before the United States District Judge of the district embracing Laredo, the evidence touching the result of the search was suppressed on the ground that the authority of the officers in making arrests and searches was limited to cases involving the illegal entry of aliens into the United States. It was admitted by the state that the suppressed evidence was the same evidence upon which the state was seeking a conviction. Appellant interposed numerous objections to the receipt of the testimony of the officers touching the result of the search. One of the objections urged was that the testimony was inadmissible for the reason that it was obtained in violation of the Constitution and laws of the United States and of Texas. Another objection urged was that the order of the United States District Court suppressing the testimony of the officers was a judgment in rem fixing the status of the acts of said officers in all proceedings brought thereafter involving said acts, and that consequently to refuse to recognize the order of said district court was in effect to deny to a judgment of a court of competent jurisdiction the full faith and credit to which it was entitled under the Constitution and laws of the United States. We deem it unnecessary to decide whether the officers were authorized as such to arrest and search offenders violating the statutes inhibiting illegal traffic in intoxicating liquors. Martin violated no law in approaching appellant and asking him what he had,in his car. Without making a search of the car, Martin saw bottles therein . which he believed contained intoxicating liquor. Upon being questioned, appellant advised him that he had four or five quarts of liquor in the car. Up to this time Martin had not arrested appellant, nor had he searched the car. Prior to arresting appellant, Martin was fully appraised by what he had seen and by what appellant had *489 told him that appellant was committing a felony. Article 212 C. C. P., provides: “A peace officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an ‘offense against the public peace.’ ” The testimony clearly showing that appellant was committing a felony in the presence and view of Martin, he had a right to arrest appellant. The arrest being legal, a search contemporaneous therewith was warranted. Hodge v. State, 298 S. W. 573; Rochelle v. State, 294 S. W. 860. The action of the United States District Court in suppressing the testimony did not have the effect of precluding the reception of such testimony by the state court. It was merely determined in the Federal Court that there was an infirmity in the legality of the means by which the evidence was secured. The question there decided related to the competency of the evidence. The order suppressing the evidence was only an incident to the main case and not determinative of it. State v. Bass (Supreme Court of Tennessee) 281 S. W. 936, and authorities cited. We have carefully examined every contention made by appellant and fail to find reversible error. 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.