Appellant insists that the arrest of him and his companion was illegal, and therefore their search unauthorized and the evidence as to the result of the search inadmissible, and that our holding to the contrary in the original opinion was erroneous.
As we understand the motion, appellant bases his contention largely on the case of Woods v. State, 119 Tex. Crim. 43,46 S.W.2d 704, which he claims is controlling here. Article 214, C. C. P., provides: "The municipal authorities of towns and cities may establish rules authorizing the arrest, without warrant, of persons found in suspicious places, and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws."
Woods was arrested in the City of Whitesboro, which at the time had not adopted an ordinance embracing the provisions of article 214. The arrest there was held illegal because Woods was simply strolling about the city at night in suspicious places. The arrest in this case was made in the City of Merkel, which had not adopted the provisions of article 214. If there were no facts bringing into operation other articles of our statute the Woods case would be controlling, but we think the facts make applicable article 325, C. C. P., which we again quote, italicizing that part which we think particularly pertinent. "All persons *Page 384 have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bring it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, bereasonable ground to suppose the property to be stolen, and theseizure must be openly made and the proceedings had withoutdelay."
Between 1 and 2 o'clock at night the arresting officer heard noises which caused him to discover appellant and his companion in the dark in the rear of some buildings, one of them stooping over some automobile casings which still had the wrappings on them, and which the officer said he "presumed were stolen." We can not escape the conclusion that the facts made pertinent the italicized part of article 325, and that the officer had "reasonable grounds to suppose the property to be stolen," and also that appellant and his companion were the thieves. We are not quite sure that it is the purpose of appellant to insist that before the officer would be authorized to arrest under article 325, C. C. P., it would be necessary for him to have had information that a a felony had been committed, and the property discovered by him stolen, and that the offender was about to escape. If such is the position of appellant then we are not in accord therewith. If the information mentioned had been given the officer then both article 325 and article 215, C. C. P., might have been operative; the latter article reading as follows: "Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused."
Under the facts of many of the reported cases, both articles are operative, but it is not our understanding that before an officer may proceed under article 325, C. C. P., he must have information that a "felony" had been committed, and that the offender was about to escape. This article is found under title of search warrants. It was evidently designed to prevent the consequences of theft by clothing private persons with authority, in the absence of a warrant to seize property where there was reasonable ground to suppose it to have been stolen, and to bring it, with the supposed offender, before the proper magistrate. Certainly the rights of an officer, when acting *Page 385 under the provisions of said article, would be no more limited or restricted than those of ordinary citizens.
The officer testified as follows: "I threw my pistol on them and arrested them because they were in the dark and in a suspicious place, and I did not know but what they were armed. I did not want them to have any advantage of me because I was alone."
It is urged that this statement from the officer shows that he simply arrested the parties on suspicion, without authority by ordinance of the city to so do. The state should not be bound by a portion of what the officer said, but his entire statement should be considered. In connection with the part of his testimony above quoted, and immediately following it, he testified: "The large man, Bennett, was standing in the back of a short building by some automobile casings, that I presumed were stolen, and I did not want to take any chances on it."
In addition to the authorities cited in our original opinion, and as supporting the conclusion reached, we cite, Childress v. State, 107 Tex.Crim. Rep., 294 S.W. 586; English v. State, 34 Tex.Crim. Rep., 30 S.W. 233; Porez v. State, 29 Tex.Crim. Rep., 16 S.W. 750; Luera v. State, 12 Texas App., 257.
The motion for rehearing is overruled.
Overruled.