There is no dispute in this record of any fact issue. The officers did not go to appellant's house to make search thereof for anything. Their business there was for another purpose and with another party. After entering same, and after the occurrence of the crashing noise in an adjoining room set out in the original opinion, each officer entered said adjoining room through an opened door, as testified to by each. What was then seen and smelled assured them that appellant was committing a felony in their view. Their duty was plain. They could not discharge the duty imposed by the situation otherwise than by arresting appellant and initiating proceedings against him. In his interesting and able motion herein, appellant cites Steverson v. State, 109 Tex.Crim. Rep., 2 S.W.2d 453, 454. We quote from the opinion in that case: "If without unlawful acts on their part things described in Art. 690, P. C., came to view of the officers from which it was apparent that a felony was being committed in their presence then a seizure without a warrant of the things being used to violate the law would be authorized. Under proper circumstances this course is authorized by Art. 690, P. C., Art. 212, C. C. P., and has been sanctioned under the decisions of this court and the Supreme Court of the United States in many cases." Authorities are cited.
We think the acts of the officers, deemed by appellant to offend against our search and seizure laws in this case, to be strictly within the rule above laid down. We find nothing in any of the other cases cited in the motion holding a contrary view. *Page 167
The motion for rehearing will be overruled.
Overruled.