In the original opinion the sufficiency of the evidence to show probable cause for the search of the automobile of the appellant was assumed. The accuracy of that assumption is now challenged by the appellant and it therefore becomes proper to review the facts which are before this court.
Glasscock, a Texas ranger stationed at Marshall, was one of the arresting officers. He had no acquaintance with the appellant, but he, in company with Ranger Ezell, made the arrest upon the public road. From Glasscock's testimony we take the following quotations:
"When we first saw Odenthal he was traveling west in a Dodge coupe. * * * There was nobody with him. We met him something like four miles from here, and then we turned around and followed him something like a mile and a half or two miles and overtaken him. We stopped him and told him we would like to look in his car. He didn't say anything. I was kind of in front and Ezell was talking to him. Ezell went to the car before I did, and he came back, and I walked back to the car, and Ezell says: 'It is loaded.' One of us got in the car with him, Ezell or I one, and we brought him back here to the jail. We opened the back end of the car and looked in it, out there on the road, and then we searched it again when we got to the jail and unloaded the whiskey. * * * I just saw him and suspected he had some whiskey and arrested him, when I ascertained out there that he did have."
Ezell did not testify.
As applied to the search without warrant of an automobile in which intoxicating liquor is unlawfully transported, the announcement of the Supreme Court of the United States in the opinion of Chief Justice Taft in the case of Carroll v. United States, 69 Law Ed. 543, states the law with unmistakable clearness. It quotes a part of the Fourth Amendment to the Constitution of the United States, as follows:
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."
The history of the searches and seizures which led to the amendment and its subsequent construction by the court is stated *Page 8 in the most instructive and interesting manner. From the opinion we quote:
"The intent of Congress to make a distinction between the necessity for a search warrant in the searching of private dwellings and in that of automobiles and other road vehicles in the enforcement of the Prohibition Act is thus clearly established by the legislative history of the Stanley Amendment. Is such a distinction consistent with the Fourth Amendment? We think that it is. The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable."
"On reason and authority the true rule is that if the searchand seizure without a warrant are made upon probable cause,that is, upon a belief, reasonably arising out of circumstancesknown to the seizing officer, that an automobile or othervehicle contains that which by law is subject to seizure anddestruction, the search and seizure are valid."
"We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."
"It would be intolerable and unreasonable if a prohibitionagent were authorized to stop every automobile on a chance offinding liquor, and thus subject all persons lawfully using thehighways to the inconvenience and indignity of such a search. * * * Those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise."
"The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."
"We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction."
"Such a rule fulfills the guaranty of the Fourth Amendment. *Page 9 In cases where the securing of a warrant is reasonably practicable, it must be used. * * * In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause. United States v. Kaplan, 286 Fed. 963, 972."
"But we are pressed with the argument that if the search ofthe automobile discloses the presence of liquor, and leads,under the statute, to the arrest of the person in charge of theautomobile the right of seizure should be limited by the commonlaw rule as to the circumstances justifying an arrest withoutwarrant for a misdemeanor."
"The argument for defendants is that, as the misdemeanor, to justify arrest without warrant, must be committed in the presence of the police officer, the offense is not committed in his presence unless he can, by his senses, detect that liquor is being transported, no matter how reliable his previous information, by which he can identify the automobile as loaded with it."
"The right to search and the validity of the seizure are notdependent on the right to arrest. They are dependent on thereasonable cause the seizing officer has for belief that thecontents of the automobile offend against the law."
On the subject of "probable cause," the opinion states:
"The necessity for probable cause in justifying seizures on land or sea, in making arrests without warrant for past felonies, and in malicious prosecution and false imprisonment cases, has led to frequent definition of the phrase. In Stacey v. Emery, 97 U.S. 642, 645, 24 L. Ed. 1035, 1036, a suit for damages for seizure by a collector, this court defined probable cause as follows:
" 'If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient'."
"But, as we have seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the Director General's agent, which, in the judgment of the court, would make his faith reasonable."
The case of Carroll v. United States, 267 U.S. 132, will be found reported in the 39 Am. Law. Rep. 791, and in the notes on page 831 are a great number of recent cases decided in the courts of various states of the Union in which the principles announced by Chief Justice Taft in the opinion in Carroll v. United States, supra, are applied to various states of facts, some of them holding the evidence sufficient to justify the search; others, the contrary. Among the latter are the following: *Page 10 Batts v. State, 114 N.E. 23; Adkins v. Com., 202 Ky.,259 S.W. 32; State v. Pluth, 157 Minn. 145, 195 N.W. 789; Ashbrook v. State, 92 Okla. 287, 219 P. 347; Klein v. State,223 P. 201; Carroll v. State (Okla. Crim. Rep.), 235 P. 935.
The uniform rule controlling the state courts in holding the seizure legal, as well as those holding it illegal, is in consonance with the announcement in Carroll v. United States, supra. That is to say, that the search of an automobile upon the public highway may be made without warrant where the seizing officer has knowledge or information of facts constituting probable cause as above defined. The legality of the search is to be determined alone upon the existence of "probable cause" before the search is made, and is not to be justified by knowledge ascertained through the search. The search cannot be justified upon mere suspicion.
The facts before the United States Supreme Court in the Carroll case, supra, are stated in the opinion thus:
"The search and seizure were made by Cronenwett, Scully and Thayer, Federal prohibition agents, and one Peterson, a State officer, in December, 1921, as the car was going westward on the highway between Detroit and Grand Rapids, at a point sixteen miles outside of Grand Rapids. The facts leading to the search and seizure were as follows: On September 29th, Cronenwett and Scully were in an apartment in Grand Rapids. Three men came to that apartment, a man named Kruska, and the two defendants, Carroll and Kiro. Cronenwett was introduced to them as one Stafford, working in the Michigan Chair Company in Grand Rapids, who wished to buy three cases of whiskey. The price was fixed at $130 a case. The three men said they had to go to the east end of Grand Rapids to get the liquor, and that they would be back in half or three-quarters of an hour. They went away and in a short time Kruska came back and said they could not get it that night, that the man who had it was not in, but that they would deliver it the next day. They had come to the apartment in an automobile known as an Oldsmobile roadster, the number of which Cronenwett then identified, as did Scully. The proposed vendors did not return the next day, and the evidence disclosed no explanation of their failure to do so. One may surmise that it was suspicion of the real character of the proposed purchaser, who Carroll subsequently called by his first name when arrested in December following. Cronenwett and his subordinates were engaged in patrolling the road leading from Detroit to Grand Rapids, looking for violations of the Prohibition Act. This seems to have been their regular tour of duty. On the 6th of October, Carroll and Kiro, going eastward *Page 11 from Grand Rapids in the same Oldsmobile roadster, passed Cronenwett and Scully some distance out from Grand Rapids. Cronenwett called to Scully, who was taking lunch, that the Carroll boys had passed them, going toward Detroit, and sought with Scully to catch up with them, to see where they were going. The officers followed as far as East Lansing, half-way to Detroit, but there lost trace of them. On the 15th of December, some two months later, Scully and Cronenwett, on their regular tour of duty with Peterson, the State officer, were going from Grand Rapids to Ionia, on the road to Detroit, when Kiro and Carroll met and passed them in the same automobile, coming from the direction of Detroit and Grand Rapids. The government agents turned their car and followed the defendants to a point some sixteen miles east of Grand Rapids, where they stopped them and searched the car. They found behind the upholstering of the seats, the filling of which had been removed, sixty-eight bottles. These had labels on them, part purporting to be certificates of English chemists that the contents were blended Scotch whiskeys, and the rest, that the contents were Gordon gin, made in London. When an expert witness was called to prove the contents, defendants admitted the nature of them to be whiskey and gin. When the defendants were arrested, Carroll said to Cronenwett, 'Take the liquor and give us one more chance and I will make it right with you,' and he pulled out a roll of bills, of which one was for $10. Peterson and another took the two defendants and the liquor and the car to Grand Rapids, while Cronenwett, Thayer and Scully remained on the road, looking for other cars, of whose coming they had information. The officers were not anticipating that the defendants would be coming through on the highway at that particular time, but when they met them there they believed they were carrying liquor; and hence the search, seizure, and arrest."
The analysis and conclusion from these facts made by Chief Justice Taft, writing the majority opinion in the Carroll case, supra, were as follows:
" 'It has been very justly observed at the bar that the court is bound to take notice of public facts and geographical positions; and that this remote part of the country has been infested, at different periods, by smugglers, is a matter of general notoriety, and may be gathered from the public documents of the government.'
"We know in this way that Grand Rapids is about 152 miles from Detroit, and that Detroit and its neighborhood along the Detroit river, which is the international boundary, is one of the *Page 12 most active centers for introducing illegally into this country spirituous liquors for distribution into the interior. It is obvious from the evidence that the prohibition agents were engaged in a regular patrol along the important highways from Detroit to Grand Rapids, to stop and seize liquor carried in automobiles. They knew, or had convincing evidence to make them believe, that the Carroll boys, as they called them, were so-called 'bootleggers' in Grand Rapids — i. e., that they were engaged in plying the unlawful trade of selling such liquor in that city. The officers had soon after noted their going from Grand Rapids half-way to Detroit, and attempted to follow them to that city to see where they went, but they escaped observation. Two months later these officers suddenly met the same men on their way westward, presumably from Detroit. The partners in the original combination to sell liquor in Grand Rapids were together in the same automobile they had been in the night when they tried to furnish the whiskey to the officers, which was thus identified as part of the firm equipment. They were coming from the direction of the great source of supply for their stock to Grand Rapids, where they plied their trade. That the officers, when they saw the defendants, believed that they were carrying liquor, we can have no doubt; and we think it is equally clear that they had reasonable cause for thinking so. Emphasis is put by defendant's counsel on the statement made by one of the officers that they were not looking for defendants at the particular time when they appeared. We do not perceive that it has any weight. As soon as they did appear, the officers were entitled to use their reasoning faculties upon all the facts of which they had previous knowledge in respect to the defendants."
The facts above set out which were before the court were quite sufficient to authorize the search without warrant, under numerous cases, among which are the following: Thomas v. State (Ind.), 146 N.E. 850; Rowland v. Commonwealth, 202 Ky. 92,259 S.W. 33; People v. Kamhout, 227 Mich. 172, 198 N.W. 831; Moore v. State (Miss.), 103 So. 483; State ex rel. Brown v. District Ct. (Mont.), 232 P. 201; State v. Codette, 188 N.C. 497; State v. Dinger (N.D.), 199 N.W. 196; McAdams v. State,101 Okla. 267, 219 P. 145; Commonwealth v. Klein, 81 Pa. Super. 551; Farmer v. State, 148 Tenn. 216; State v. Secrest,131 Wash. 217, 229 P. 744. In all of these cases it will be found that the facts met the tests above mentioned, namely, that an essential prerequisite for the validity of the seizure without warrant, probable cause, as distinguished from mere suspicion, must be present. *Page 13
If the officers, before making the search of the appellant's car, had any information or knowledge concerning the business or reputation of the appellant, or the contents of his car, the record fails to disclose it. The search apparently was made upon mere surmise or suspicion. Evidence of facts showing "probable cause" as named in the Constitution and statute and defined by the courts, is entirely wanting. As the record comes before this court, it is void of any foundation for the search other than mere suspicion, and was therefore contrary to the provisions of the Fourth Amendment to the Federal Constitution, and to Section 9, Article 1, of the State Constitution.
Having reached the conclusion that the evidence in the present record fails to show that the officers searching the appellant's automobile had "probable cause" warranting the search, but on the contrary it appearing from the evidence without conflict that the search was made upon bare suspicion, it becomes necessary to determine whether, under the law of this state, the evidence of the officers obtained through an unreasonable search was properly receivable against the accused.
As stated in the original opinion, the obvious purpose of the legislature in enacting Chapters 49 and 149, supra, parts of which are quoted in the original opinion, was to change the rule of evidence announced by this court in the case of Welchek v. State, 93 Tex.Crim. Rep., and other cases following it.
To the introduction of the evidence of the state's witnesses named showing the fact of the search of the appellant's automobile and the result thereof, he interposed an objection which the court overruled, and the ruling is brought to this court for review by proper bill of exceptions.
As a guaranty against unreasonable seizures and searches, Article 1, Section 9 of the Bill of Rights reads thus:
"The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation."
From Chapter 149, Acts of the Thirty-ninth Legislature, we quote as follows:
"Section 1. The people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures or searches; and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath, or affirmation." *Page 14
"Section 2. It shall be unlawful for any person or peace officer, or state ranger, to search the private residence, actual place of habitation, place of business, person or personal possessions of any person, without having first obtained a search warrant as required by law."
Section 3 states the penalty for violating the act and authorizes a fine or imprisonment or both.
The emergency clause embraced in Section 4, reads in part as follows:
"The fact that the people are not secure in their persons, houses, papers and possessions from unlawful and unreasonable seizures and searches, creates an emergency."
Chapter 49, Acts of Thirty-ninth Legislature, amends Title 8, Chapter 7, C. C. P., 1911, adding Article 787a, as follows:
"No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."
Section 2 of the Act reads thus:
"The fact that there has been used against citizens of this state evidence obtained in violation of the Constitution of the State, and that there is now no statute expressly forbidding the same, creates an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and said rule is so suspended, and that this Act shall take effect and be in force from and after its passage, and it is so enacted."
Both of these Acts reflects the intent of the legislature to supply the omissions in the law pointed out by the decisions of this court, notably in Welchek v. State, 93 Tex. Crim. 273, in which it was shown that no statute penalizes an illegal search, and in which it was held that the courts should not penalize it by excluding evidence of crime obtained in such a search. From that decision we take the following quotation:
"In our judgment, however, the proper decision of the question before us rests on the fact that there is nothing in the constitutional provision inhibiting unreasonable searches and seizures which lays down any rule of evidence with respect to the evidential use of property seized under search without warrant, nor do we think anything in said constitutional provision can be properly construed as laying down such rule. It seems to us that it is going as far as the provision of said constitution demands to admit that one whose property is wrongfully obtained in any manner, is entitled to his day in some court of competent jurisdiction and to a hearing of his claim for the *Page 15 restoration of such property, and for the punishment of the trespasser, or the announcement that the citizens may defend against such intrusion; but it must always be borne in mind, if there appear the fact that said property by its physical appearance upon the trial will aid the court in arriving at a correct conclusion in a criminal case, that the owner's right to return thereof should be held in abeyance until said property has served the government — the whole people, by its appearance in testimony. Nor can the rejection of the proffer in testimony of such property be soundly sustained upon the theory that the officer or person who removed such property having evidential value from the house or curtilage of its owner, should be punished for an entry into said premises without search warrant. To reject such evidence for such reason or to completely return same to the owner and relinquish jurisdiction over same, would in nowise be a punishment to the officer but would rather be a hurt inflicted upon the people whose interest in the punishment of crime suffers because the court may think the officer should be rebuked for the manner in which he obtained the evidence."
In making this announcement, this court declared the law as understood by its members and in accord with the rule announced by the courts of last resort in many jurisdictions to which reference is made in the opinion mentioned. The legislature having seen fit, by the passage of the statutes mentioned, Chapters 49 and 149, supra, to change the rule of evidence applied in the Welchek case, supra, it becomes the duty of this court to interpret them and unless invalid, to give them effect.
In the absence of constitutional inhibition, the legislature may make an act a crime, whether moral turpitude is involved in the act or not. Ruling Case Law, Vol. 6, p. 156; Missouri v. Berger, 3 L. R. A. (N. S.), p. 530. We are aware of no constitutional inhibition, either express or implied, obstructing the power of the legislature, by appropriate legislation, to penalize the peace officer for making a search of the property of a citizen which he was forbidden to make by the Constitution of the United States and of the state. Chapter 49, supra, prescribes a rule of evidence. In such an enactment the legislature has exercised a right which, by judicial decision, it has often been declared to possess. A pertinent illustration of the authority of the legislature to prescribe rules of evidence as it is attempted in Chapter 49, supra, is found in the enactment of the legislature of this state declaring the possession of more than one quart of intoxicating liquor prima facie evidence that such liquor was possessed for the purpose of sale. This statute has been upheld *Page 16 in Stoneham v. State, 268 S.W. 156, and numerous others in this state, and by practically all of the other states of the Union as shown by the report of the case of United States v. Lapointe, 31 Amer. Law. Rep. 1222.
It is likewise illustrated in the statute declaring that a conviction may not be had upon the uncorroborated testimony of an accomplice witness. See Art. 718, C. C. P. 1925, and the exemptions from the operation of the statute last mentioned, whereby the testimony of co-actors and persons criminally connected with violations of the law forbidding the transportation or the possession for the purpose of sale of intoxicating liquors, which has been upheld on numerous occasions.
Other instances in which the same principle has been applied are found in the statute declaring the husband and wife incompetent witnesses against each other, and declaring persons charged with the same offense competent witnesses for the state, but incompetent for the accused. Many other illustrations might be added.
The soundness of the proposition, however, that the legislature in declaring that the evidence obtained by a search forbidden by the Constitution of the United States and of the state and by the statutes of the state, could not be received in evidence, was acting within the scope of its authority seems not open to question. The policy of the law is not a matter for judicial consideration. See Hopt v. People, 110 U.S. 574.
The act upon which the present prosecution is founded and the search of the appellant's automobile took place in March, 1925. The acts of the legislature discussed, namely, Chapters 49 and 149, supra, became effective June, 1925. The trial took place in October of the same year.
It is contended by the state, notwithstanding the search of the appellant's automobile was illegal, that the evidence obtained thereby, coming from the officers who made the search, was nevertheless admissible in evidence against the appellant. This contention is based upon the fact that at the time the offense was committed and the search made, the Acts of the Legislature mentioned, Chapters 149 and 49, supra, were not in force. It is true that at the time the search was made there was no penal offense attached to the act. It cannot, however, be justly held to have been a legal act for the reason that the search of the appellant's automobile without a search warrant was forbidden by the Fourth Amendment to the Constitution of the United States and by Sec. 9 of Art. 1 of the Constitution of this state forbidding unreasonable searches and seizures. Appellant therefore *Page 17 contends that Chapter 49, supra, being a procedure statute in force at the time of the trial, operated to exclude evidence obtained by a search of the appellant's automobile illegally made at a time antecedent to the date that the statute mentioned became effective.
There is no legal obstacle to the application of statutes changing procedure to proceedings pending at the time of their enactment. Where the application does not impair or destroy vested rights and when a new statute deals with procedure only — prima facie it applies to all actions — to those which have accrued or pending as well as those subsequently accruing. Ruling Case Law, Vol. 25, p. 791, Sec. 38; Underhill's Crim. Ev., 3rd Ed., Sec. 11. This principle has been uniformly given effect with reference to criminal statutes in both federal and state courts. For instance, in Hopt v. Utah, 110 U.S. 574, 28 Law Ed. 262, there was an enlargement of the class of persons competent to testify in criminal cases, and in such testimony, over the objection of the accused, the court said:
"Alterations which do not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but, leaving untouched the nature of the crime, and the amount or degree of proof essential to conviction, only removes existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the modein which the facts constituting guilt may be placed before thejury, can be made applicable to prosecutions or trialsthereafter had, without reference to the date of the commission of the offense charged." (Hopt v. People, 110 U.S. 574.)
In Mallett v. North Carolina, 181 U.S. 594, 45 Law Ed. 1018, a statute upholding the right of the state to appeal in criminal cases was made applicable to pending as well as to future trials. Many other examples are found in Rose's Notes on United States Reports, Vol. 12, Rev. Ed., p. 415. Many of these relate to the application of statutes changing the rules of evidence. Numerous illustrations are also found in the decisions of this court. For example, in Mrous v. State,31 Tex. Crim. 600, the statute under consideration permitted the prosecutrix in a trial for seduction to testify, when at the time the offense was committed, she was, by law, made an incompetent witness. In the opinion the court cited with approval precedents holding that a statute enlarging the class of persons who are competent witnesses *Page 18 was applicable to offenses previously committed. This was applied against the accused. It would seem to follow that a statute restricting the class of persons by whom the state might prove the guilt of the accused would bear upon previous as well as subsequent offenses. Such was the express holding of this court in Askew's case, 127 S.W. 1037. Askew was convicted of homicide. The sheriff testified that after his arrest and while under arrest appellant made, in the presence of the sheriff, a verbal confession, and this was proved by the testimony of the sheriff. At the time the offense was committed and the confession made, it was competent to prove that the accused, while under arrest, had made a verbal confession. After the offense was committed and the confession was made, a statute was passed requiring that such a confession, to be admissible, should be in writing. This court held the verbal confession not admissible, and said:
"At the time the confession was made, the present law requiring a confession to be reduced to writing had not been enacted; but that is immaterial. Appellant is now authorized to interpose any objection to such confession, although made before the enactment of the statute, although it may have been admissible as a parol confession at the time it was made. The authorities are quite clear upon this question, and we think unnecessary to be cited."
The principle stated has been applied by this court in James v. State, 163 S.W. 61; McInturf v. State, 20 Tex.Crim. App. 335; Blount v. State, 31 S.W. 652; Wright v. State,163 S.W. 976; Barnett v. State, 42 Tex.Crim. Rep.; Ybarra v. State,164 S.W. 10. See also Thompson v. State, 42 S.W. 949, in which the Supreme Court of Missouri reviewed the precedents and reasons supporting the law.
In the present instance, in searching the automobile of the appellant the officers who testified against him acted without "probable cause," on mere suspicion, and without the semblance of right or authority. Under the rule applied in the Welchek case, 93 Tex.Crim. Rep., the testimony would have been properly received. The express purpose of the legislature in passing Chapter 49, supra, was to reverse the rule applied by this court in the Welchek case, supra. The right of the legislature to do so is, in the mind of the writer, unquestionable. The precedents to that effect are without conflict. The legislature having, by constitutional methods, changed the rule of evidence, it was available to the accused and should have operated to exclude the evidence illegally obtained. Obedience to the statute *Page 19 required its exclusion, and the trial court having failed to do so, it is incumbent upon this court, in the discharge of its duty, to reverse the judgment of conviction to the end that the accused may be tried in accord with the written law of the land.
The motion for rehearing is granted, the affirmance is set aside, the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
CONCURRING OPINION.