I regret not to be in accord with my associates in every case. In this case an officer without warrant was seeking to ferret out and bring to justice the slayer of a man who had been killed at a filling station on a public highway in the late afternoon. The scene of the killing and the arrest of appellant for the murder, was some seven miles from the county seat, and unquestionably many miles from any magistrate before whom complaint could be filed after investigation, and by whom a warrant of arrest could have been issued. The officer referred to went from the county seat at once upon information, to the scene. He viewed the dead body, observed the character of the wounds, saw a shotgun shell near by on the ground, saw a hole in a door which had been made by the passage of a charge from a shotgun. Examining the ground he discovered the fresh tracks of a horse leading away. These he followed south some three hundred yards until he came to a gate leading west into appellant's place. Here he observed the fresh tracks of a man, and gave his attention to these. They led to appellant's dwelling near by. Observing no one as he came to the house, the officer called. Appellant came to the door. The officer told him he was making an investigation and wondered if appellant could give him any information. Appellant said no, and the officer asked if he had heard any shots fired around the filling station. To this appellant answered no. The house was located some three hundred and fifty yards from the filling station. After making the last answer set out, and at a time when no one had said anything about deceased being killed, the officer testified that appellant hesitated for a moment and then said: "That old man was a good old man. I was down there at two o'clock, and haven't been back since." When he made this statement the officer arrested him, went inside the house, and while appellant was changing his shoes and garments the officer observed the things, testimony regarding which is set out in bills of exception 4, 8 and 9, discussed in our original opinion herein in which the case was affirmed. Other information may have been possessed by the officer pointing to appellant as the slayer. No particular effort to bring such out appears.
In the opinion on rehearing reversing the case it is stated that there appears in the record no legal basis for the search *Page 114 of appellant's dwelling without a search warrant, which statement is based on the further announcement that the arrest of appellant was not justified by any provisions of our law, there referred to. I cannot bring myself into agreement with such proposition, and believe same carried to its logical sequence will greatly handicap peace officers in doing their duty, and the administration of justice in the trial of criminal cases. Article 215, C. C. P. makes it the duty of every peace officer to arrest without warrant when it is shown by satisfactory proof, upon 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. Every law must be given reasonable interpretation. If the officer in question, as a result of personal observation or ascertainment acquires proof satisfactory that a felony has been committed, and that the offender is in his presence, it would appear to be his duty to arrest him. If confronted with choice whether he will either arrest and detain the offender without warrant, or leave him unarrested and not detained and go miles to where he can secure a warrant such officer should have, and in the opinion of the writer has, the right to arrest without warrant, under the command of the statute referred to.
It would be idle to say that because the offender be not in flight at the moment of proof to the satisfaction of the officer, that the latter can not say such offender is about toescape. Nor would assurance from such offender by word or act, under such circumstances, that he would make no effort to escape, justify the officer in leaving him unarrested while the officer travels to some distant magistrate or to the county seat for a warrant. To so lay down such rule would compel an officer, observant thereof, though satisfied from what he has seen and heard that one then in his presence has committed murder, robbery, or other felony, to forego the arrest and detention, because forsooth the offender be on his own premises, or assures the officer in some manner that he will not flee while a warrant is being procured. This is not the law, and in an age of increasing crime and ease of escape, it is hoped it will never become such by pronouncement of this court. The statute referred to, analyzed, clearly says that upon proof satisfactory to the peace officer of two things, viz: (1) that a felony has been committed, (2) that the offender is about to escape so as that there is no time to procure a warrant, he must arrest without warrant. Article 37, C. C. P., says: "He shall arrest offenders without warrant in every case where he is authorized *Page 115 by law, in order that they may be taken before the proper magistrate or court." Peace officers are not lawyers or judges, but men charged with the conservation of the peace, and in most cases the protection of society, and the exercise of their discretion in matters such as are here set forth should not be overturned or revised except possibly in cases clearly evidencing some abuse, which latter is wholly absent in this case. The record shows that in this connection, and as a predicate to the admission of this testimony, the jury were twice retired by the trial court while he heard evidence to enable him to determine whether the officer's testimony was admissible, and what he then heard is not here set out.
The officer knew that a felony had been committed, that is, a man had been killed by a shot from a shotgun; that appellant was the nearest dweller; that fresh tracks led to appellant's house; that the crime was committed late in the afternoon; that appellant said he had not been down to the scene since 2 o'clock, a statement which the officer may have known to be untrue; that he heard no shots; that without information that a killing had taken place, appellant made statements clearly indicative of his knowledge that the old man who was a good old man, was no longer in the land of the living. What was the officer to do? Here was a man of whose guilt the officer plainly believed himself to have satisfactory proof. If he had gone without arresting in such case and the accused had gotten in a car and traversed the few miles over the highway to the border of our sister state of Oklahoma, the officer would likely have had serious difficulty in escaping just criticism, if not more serious consequences. Authorities are collated in the notes of Mr. Vernon's Annotated C. C. P. under article 37 and article 215 thereof. In Rutherford v. State,104 Tex. Crim. 127, speaking through Judge Morrow, this court said: "It is true that the law does not demand that the officer possess superhuman foresight, nor that he do more than what comports with reason, taking into account the emergency of the occasion." The rule is then laid down that the demand of the law is that its restrictions be in good faith observed, and be not willfully ignored or captiously disregarded. In the well considered case of Hepworth v. State, 111 Tex. Crim. 307, opinion by the same judge, and upon construction of a statute and a state of facts not so demanding as here, it is said: "The facts in evidence were apparently in possession of the officer at the time he made the arrest and justified it under either article 215 or article 325, supra." In said case the officer *Page 116 was only in possession of information that a theft had been committed, and had a description of the supposed thief, who was found on a public street of a city within whose limits a magistrate could have been reached in a few moments, but the officer's arrest of the accused was held legal in such case. I again say that I can not agree to the proposition that the accused was illegally arrested in this case.
Nor can I assent to the engrafting on the law of this state by judicial construction further extensions of the doctrine of the rejection of evidence material to the ends of justice, which would be held admissible but for such extended construction of the so-called search and seizure law under which men who have committed burglaries and thefts and murders, and probably other offenses, have taken and will take shelter. I refer to the proposition that if the officer could give testimony legally as to what he saw and observed coincident with the arrest of appellant, that what he there saw and found a few moments later could not be legally received in evidence. As said by Judge Morrow in Stokes v. State, 117 Tex. Crim. 307,35 S.W.2d 727: "No precedents have been discovered indicating that the right to search the premises in which the crime was committed, would cease with the arrest. There are cases holding that, after the arrest of one accused of crime and his incarceration, a search of the premises without warrant would be illegal. Touching the soundness of which holding we express no opinion." I undertake to say that in no case which can be found has it ever been held that if the arrest be legal and the accompanying search be also legal, or there be an otherwise legal search of premises, that asearch of the same premises, by the same officers a few moments after accompanying the accused a distance of a few hundred yards, or to the nearest place of confinement and there turning him over to others, followed by an immediate return to the same premises and a further search thereof, would be illegal. The right to search the place where the accused is legally arrested being conceded, the right to make thorough search would seem also necessarily admitted. What search could be made by an officer who has in his custody the accused? What sane or reasonable ground of objection could be interposed to the return of the officer after taking the accused out to the street, or a short distance away to some other officer or place of confinement, and then returning to the place originally searched, to complete such search? Such is not the doctrine of the Stokes case, supra, nor the Davis case, 113 Tex. Crim. 421,21 S.W.2d 509, nor *Page 117 any other case in our state, or elsewhere, as far as I know. To so hold would lead to the absurdity that though legally in, and legally entitled to search, if the officer step outside the door, his right has vanished, and when he returns he is a trespasser or violator of the law. The people of this state suffer from unpunished crime, some of which unfortunate state of affairs flow from necessary application of the statute rejecting evidence when he who is prepared to give same has wittingly or otherwise overstepped the supposed right of some criminal in his effort to ferret out crime or overtake the offender. In such case this court has no other course to follow except to give effect to the law as written in the statute books, but to agree to the rule under discussion, now for the first time sought to be given application in this state, seems to the writer to be going too far. The officer in this case, after arresting appellant and observing what was in the room, while appellant put on his garments, accompanied appellant to the filling station, turned him over to another officer, and returned to the house, as above stated, a distance of some three hundred and fifty yards, at which time he then discovered on the porch of the house another shot gun shell, which was offered in evidence and made the subject of comparison by experiments, and now, for the first time, held inadmissible in evidence. The officer was not clear as to whether he discovered this last shell upon the occasion of appellant's arrest, or when he returned after taking appellant to the filling station; but I am taking the position that it would make no difference at all in law as to the admissibility of the testimony, whether he found it at the time of and immediately coincident with the arrest of appellant, or whether he found it on the same premises a few moments later when he returned and completed his search.
I am further of the opinion that the bills of exception presenting complaints of these matters are in such condition as that if the rules applied in numerous cases be applied here, the complaints of the reception of the evidence would be unavailing. These bills of exception group things said by the witnesses, set out some times at great length, and many of which statements are admissible, and then present objections in solido to the whole of the bills. As against the availability of bills of exception in this form, I call attention to what we said in Rogers v. State, 102 Tex.Crim. Rep.; Hock v. State, 97 Tex.Crim. Rep.; Smith v. State, 92 Tex. Crim. 300; Spears v. State, 91 Tex.Crim. Rep.; Gibson v. State, *Page 118 88 Tex. Crim. 281; Surginer v. State, 86 Tex. Crim. 438, and numerous authorities which might be cited.
I recognize the futility of a dissenting opinion, but feel that I cannot, in justice to my own views in regard to the matters above discussed, hold otherwise; and I therefore respectfully dissent.
ON STATE'S MOTION FOR REHEARING.