Cass v. State

LATTIMORE, Judge. Conviction for burglary of a box car; punishment, two years in the penitentiary. The facts support the conclusion of guilt, and we find but one question raised calling for discussion, which may be stated thus: C is on trial for burglary of a box car; after his arrest officers go to the house occupied by C and his wife; she gives her consent without any sort of coercion to search the premises. In the yard behind a barrel is found part of the property taken from said box car. The question raised is: Is testimony of such finding admissible over the objection that the wife cannot waive the husband’s constitutional rights against unreasonable search and seizure? The Fourth Amendment to our Federal Constitution and section 9 of article 1, of our State Constitution, use substantially the same language in saying that the people shall be secure against unreasonable searches and seizures in houses, persons, papers, and possessions. It would seem fundamentally sound to say that unless a search, etc., be unreasonable, as that term is defined and understood, same will not violate the constitutional mandate, and since the admissibility of testimony of what is found by such search, etc., is made to depend solely on whether the search was reasonable or not, the decision of such question by any court upon any other reason than that the search is reasonable or not, must be unsound. With profound respect the writer is of opinion that when we try to solve the question here raised upon any such ground as that one person has or has not the right to waive another’s constitutional rights, we are entirely away from the issue, and get into trouble at once. When two or more persons mutually associate themselves in the possession, management, and control of houses, lands,' etc., all entitled, and each in the absence of the other, it seems idle to say that the one in possession may exercise every func — 210 — tion incident, to the business of the group, which would include ingress and egress of all sorts of persons, but that if an officer be permitted to enter and search for stolen property, his entrance and search by full and free consent óf the present member of the group, this would be unreasonable, if and when he found stolen property therein which had been stolen by some-other of the partners, but which would not be unreasonable if the property found be stolen by the one who had given permission for such search. Such attempted distinctions are without foundation, and seem to get away from and ignore the purpose of the framers of our Constitutions which, as said in Agnello v. United States, 290 Fed., 671, was plainly to protect, the people from the unreasonable searches and seizures practiced in England under general warrants, and in the colonies under writs of assistance. To hold otherwise would be dangerously near to saying that the absent partner or partners-had some vested or constitutional rights in stolen property, entrance to search for which they alone had the right to waive, or else had some right of objection to search when the common houses or lands of the group sheltered or secreted such stolen property which was in some manner excepted from the ordinary and general right of control of the common owner present and in possession. We are compelled to believe that this strained construction of our Constitution, when invoked in case property be found claimed to have been stolen by some one or more of the absent partners, is beyond the comprehension of the Constitution when fairly construed, and is fundamentally unsound. In Texas it is statutory that during coverture the separate property of each spouse is under his or her separate care, control and management, and this, whether it be homestead or other ‘ property. Also by statute the community property is equally owned and jointly controlled by both husband and wife, save that in article 4619, Revised Civil Statutes, 1925, it is stated that said property may not be disposed of except by the husband. Nowhere in our statute is the husband given any more right or control over the home or homestead than the wife, He has no more power or dominion to say who may or may not enter the house than she has. In fact and in reason she usually occupies and possesses the house occupied as a home every hour of the day, while the man chiefly uses it as a place to eat and sleep. Ordinarily she has as much intelligence as he, is as interested in and amenable to the laws as he; she is no longer a slave or a chattel, but her husband’s equal and often his superior, and we confess our inability to — 211 — differentiate as between her right and that of her husband to give legal authority to any person, be he officer or otherwise, to enter and search. If these observations be true, either husband or wife in possession, in the absence of the other, can legally give permission to enter and search the home for stolen property or other proper purpose. We are not without precedents for this conclusion in the decisions of our own court. In Bannister v. State, 112 Texas Crim. Rep., 158, the wife was charged with possession of intoxicating liquor for purpose of sale, and it appeared from testimony that consent to enter and search the house was given by the husband out of the presence of the wife. Upholding this and affirming the judgment of guilt against the wife, we said: “If appellant was equally in control and management of the premises with her husband, his consent would suffice to make legal a search had thereunder.” In Alejandro v. State, 31 S. W. (2d) 456, opinion by Hawkins, J., the state’s testimony showed that upon permission from the wife in the absence of her husband, the accused in the case, officers searched the house and found a quantity of intoxicating liquor. When the officer was asked to testify to what he found, objection was made on the ground that the wife had no right to give permission to enter. This court said: “We fail to discern merit in the objection,” citing Pruitt v. State, 109 Texas Crim. Rep., 71, in which latter case we upheld the validity of a search upon consent of the wife in the husband’s absence, he being on trial. In Traylor v. State, 111 Texas Crim. Rep., 58, we upheld the admissibility of testimony of what was found upon entry into the house of the accused in his absence, such entry being upon the consent of the wife. In Custer v. State, 117 Texas Crim. Rep., 164, it was shown that the officers were in appellant’s house upon consent of his brother, when they discovered things testified to upon appellant’s trial. We held the testimony admissible, and said this was no invasion of appellant’s house in violation of the mandates of either Constitution. We also said: “The officers were in no sense trespassers; they were in the house by permission of appellant’s brother.” See Epple v. State, 112 Texas Crim. Rep., 612. In Pond v. State, 119 Texas Crim. Rep., 306, we affirmed a case in which a woman was convicted for possessing intoxicating liquor for the purpose of sale, in a house occupied by herself and a man who she claimed was her common-law husband, he being present when the officers made their search, it being claimed that the search warrant had by the officers should have directed a — 212 — search of premises in the husband’s control, and that same was bad for that it laid control in her. We see no reason for concluding that if the husband’s permission to enter and search would authorize and render legal, testimony which might send his wife to prison as a thief, murderer, or bootlegger, a contrary rule should be announced when the permission to enter is given by the wife, in the absence of her husband. Appellant cites Amos v. United States, 65 L. Ed., 654, 255 U. S., 313. We have carefully examined this authority. Inasmuch as there was no contest made therein on the point here involved, the facts relative thereto were not fully developed, or else not set out in the opinion. We only know therefrom that two revenue officers went, in the absence of the accused, to his house. They told his wife they were revenue officers and had come to search the premises “for violations of the revenue law,” and she opened the store, after searching which said officers went into the home of appellant and searched same. The court in stating its conclusion says that these officers came “without warrant, demanding admission to make search of it under government authority,” etc. Further the court said: “We need not consider whether it is possible for a wife, in the absense of her husband, thus to waive his constitutional rights, for it is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected.” In the conclusion that the search was unreasonable, we think the Supreme Court entirely justified. The holding thus announced plainly limits the application of this opinion as a precedent to cases whose facts, — otherwise similar, — show coercion, express or implied, on the part of the officers, and this plainly makes said opinion wholly inapplicable to a case on facts such as appear in the one before us. In fact the quoted part of said opinion manifests express refusal to hold in that case what we are asked to here hold. If the Supreme Court of the land had been willing to hold that a wife in possession of the home, in the absence of the husband, had no right to authorize a search of same by officers, no matter how full and fair had been the consent given to such search, — they could and would have so held, but they did not. Nor have they so held in any opinion known to the writer. In Duncan v. Commonwealth, 250 S. W., 101, the Court of Appeals of Kentucky said the case was on facts similar to those in the Amos Case, supra, and that there was implied coercion on the part of the officers, and on authority of the — 213 — Amos Case, supra, it was held that the wife’s consent did not authorize the search. With highest respect for the court rendering this opinion, we think it not warranted in saying as follows: “It is apparent from the language quoted, the court without determining whether the wife might waive the constitutional rights of her husband, was of opinion that the wife by reason of the coercive situation implied from the presence of the officers of the law was relieved from the implication, there was any purpose upon her part to waive such rights, or that under such conditions there was in fact such a waiver.” We find nothing in the Amos Case suggesting that the Supreme Court intended to hold or did hold that the mere presence of officers implied coercion. The testimony of the officers in the Amos Case is not quoted in the opinion, but it is stated that they told the wife that they were revenue officers “and had come to search the premises ‘for violations of the revenue law,’ ” a statement strongly supporting the implication that if the wife did not let them carry out the purpose for which they came, they would search nevertheless. There is not a suggestion in the opinion in said case that there was a request for permission to enter, but exactly the contrary, as appears from the opinion, which further states that “government officers, who came without warrant, demanding admission.” The Kentucky court having held as appears from our quotation above, it is easy to see how the same court later following what they said in the Duncan Case, supra, could decide in Potowick v. Commonwealth, 250 S. W., 102, and Veal v. Commonwealth, 251 S. W., 648, that officers who had apparently the full and free consent of the wife to enter and search, in the absence of the husband, were guilty of making an illegal search. We note that in Veal v. Commonwealth, supra, Hart v. Commonwealth, 250 S. W., 108, is cited as supporting the conclusion, but the point was not in the Hart Case at all. Again in Gilliland v. Commonwealth, 6 S. W. (2d) 467, the same court announces a broader doctrine, viz.: that consent of the wife generally would not make legal against the husband testimony discovered by a search had in his absence, no limitation being placed upon the search when made by officers, in this opinion. This statement in Gilliland’s Case, supra, is entirely obiter dicta, no question of the wife’s consent to a search being involved in that case. We regard the actual point decided in the Gilliland Case as directly opposed in principle to the contention of appellant in the case before us. We are referred to Blakemore on Prohibition (written by — 214 — some gentleman in Mass.), sec. 957, p. 614, where it is said: “The assent of the wife of the defendant in his absence * * * constitutes no waiver of an unauthorized or invalid search and seizure.” The author cites the Amos Case, supra, O’Connor v. Potter, 276 Fed., 32, and Carignano v. State, 238 Pac., 507, as authority for his statement. Neither the Amos nor the O’Connor Cases, supra, furnish ground for so broad a statement. The Carignano Case, supra, by the Oklahoma Criminal Court of Appeals, is on facts showing a search of a store entirely open to the public and in charge of the wife in the absence of the husband, to which search the wife “made no objection,” in which it was held the testimony of the result of the search inadmissible. This suggests that the textbook referred to is not supported by the authorities cited. Likewise we are referred to a statement in Cornelius on Search & Seizure (2d Ed.), p. 71, as follows: “The weight of authority is that a wife has no authority to waive the constitutional rights of the husband,” supporting which text Cofer v. United States, 37 Fed. (2d) 677; Gilliland v. Commonwealth, 6 S. W. (2d) 467, and Hayes v. State, 261 Pac., 232, are cited. The Cofer Case on its facts showed that an officer read to a wife in her husband’s absence a warrant which authorized a search for liquor, and thereby induced her to surrender to him a gun with which he wished to make and did make experiments affecting shells, the testimony thus obtained to be used in a case not against the woman, a principle wholly foreign to that here under discussion. As stated above, the expression in Gilliland’s Case supporting the text is entirely obiter dicta and foreign to any issue in that case. The Hays Case, supra, also by the Criminal Court of Appeals of Oklahoma, showed an entrance into a store by officers in the absence of the accused, and a search on consent of the clerk in charge, the testimony of what was found being held incompetent. We are constrained to conclude the text of Mr. Cornelius as not supported by the opinions cited. The cases cited in the Hays opinion, supra, are illustrative of the danger of attempting to approach a decision of the question of whether a search is unreasonable, from the angle of the proposition that the wife has no right to waive the constitutional rights of her husband, which we regard as an entirely false premise. Reasoning appears in the authorities just mentioned reaching the conclusion that the “constitutional inhibition against unreasonable searches” amounts to a personal right in an individual which no one save himself has a right to — 215 — waive, which is both inapplicable and unsound as here applied, and leads to the apparent absurdity that no house or place in which absent persons own an interest or have with others a right of control or management, can be entered and searched in such person’s absence and the result of such search be used against such absentee. The very statement almost outrages justice. “A -stole a diamond and hid it in his bed. Three other men occupied the same room with A. Officers had the free and full consent of one or all the other three to search said room. They found the diamond. A’s objection to this testimony should be sustained, not because the search was unreasonable, but because his right to object to the search was personal, and he had not in person waived such right.” Attention is further called to the case of Commonwealth v. Tucker, 189 Mass., 457, 7 L. R. A. (N. S.) 1056, 76 N. E., 127, a murder case wherein it is shown that officers went to the residence of the accused. His mother, with knowledge that they were officers and that they desired to search the house, invited them to enter and search, insisting that she knew her son was innocent. Matters were found upon search which had evidential value. Objection was made on the trial to their admission in evidence. The court said: “The officers did not act under the warrant, but under invitation of the mother * * * the evidence thereby obtained was nevertheless admissible.” Also in Smith v. McDuffie, 72 Ore., 276, 142 Pac., 558, it appears that a search without a valid warrant was made of the premises of the plaintiff in his absence, his wife having invited the officers to search, when informed of the purpose of their visit. The court held that in the absence of plaintiff his wife was authorized to permit the search. In Grim v. Robinson, 31 Neb., 540, 48 N. W., 388, it appeared that plaintiff in error had good reason to believe that a minor child, a member of the household of defendant in error, had taken articles of property and had them in possession. So believing he went to-defendant’s house, and was allowed by the wife of the latter to look over the premises for the property, some of which he found. Held, “The wife had * * * authority to grant the permission in the absence of her husband. It was not only her privilege, but her moral duty to do so.” There are some other cases in other states which have been examined and hold to the contrary, but it is believed the writers in those cases have misapprehended the precedents cited or the principles involved. Men can have no vested or sacred right to possess things — 216 — whose very possession is a violation of law; nor can they keep their crimes covered by invoking the rule against unreasonable search therefor, unless reason, not fictitious pretense, — but real reason exist and appear why such search be wrong and should not have been made. Mr. Webster defines “unreasonable” as “not reasonable; irrational; immoderate; exorbitant.” “Reasonable,” he says, is “thinking, speaking or acting according to the dictates of reason; not immoderate or excessive.” He gives as synonyms “rational; just; honest; equitable; fair; suitable; moderate; tolerable.” We cannot bring ourselves to understand how, from any viewpoint, if there be two partners, each equally entitled to the care, management, and control of joint property, it can be argued that one or either can have other or different rights in the matter of allowing entry and search, from the rights of the other partner, — and especially when the only difference between the two is that one is a male and the other a female. Nor can we see reason for quibble about this when the object of the search is not some private writing or personal effect of the absent partner, — usable in the settlement of some court proceeding, — but is only for those things constituting or pertinent to a public wrong, i. e., a violation of law. In closing we call attention to what is said in Ruling Case Law, vol. 24, p. 723, as follows: “However, one who consents to have his property searched by an officer without a warrant has no right of action as for an illegal search. And this consent need not be obtained from the owner of the property, as it is sufficient if it comes from a member of his family or his duly authorized agent or servant in possession of the property at the time. Thus the consent of the owner’s wife to search the property of her husband waives any claim that he might have against an officer making the search without a warrant, or any informalities in the complaint, writ or appointment of the supposed officer. If officers armed with a search warrant, on presenting it at the home of one accused of crime, are invited by his mother to enter and search the premises, so that they do not act under the warrant, evidence obtained during the search is not illegally obtained although the act may have been a trespass as against him. Likewise, searching the office of an accused person with the consent and aid of his servant and agent, who was in possession, in order to obtain evidence against the accused, is not in violation of the constitutional provision against unreasonable searches; and the taking away — 217 — of an article found there, with the consent of the agent, is not a seizure.” We cannot agree with appellant’s contention herein. We believe the wife’s consent freely and fully given, without misrepresentation or compulsion on the part of the officers, took out of the search any element of unreasonableness, and that the testimony of the finding of the stolen property in the back yard was admissible against the appellant. The judgment will be affirmed. Affirmed.