Appellant bases his motion for rehearing on the renewed contention that the officers were in appellant's house illegally at the time they obtained information upon which the subsequent affidavit for search warrant was predicated, and hence that no evidence discovered as a result of the search should have been admitted.
"Any person who drives * * * an automobile upon any street * * * of an incorporated city, town or village, or upon any public road or highway * * * while such person is intoxicated, shall be confined in the penitentiary for not more than two years, or be confined in jail for not more than ninety days, or fined not more than five hundred dollars, or be punished by both such fine and imprisonment in jail." (Art. 802, P. C.)
"* * * An offense which may — not must — be punishable by death or confinement in the penitentiary is a felony; * * *" (Art. 47, P. C.)
An intoxicated driver of an automobile in a place prohibited by Art. 802 (supra) may as an alternative punishment be sent to the penitentiary — hence one so offending has committed a felony. McFadden v. State, 300 S.W. 54.
"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." (Art. 215, C. C. P.)
"In each case enumerated where arrests may be lawfully made without warrant, the officer or person making the arrest is justified in adopting all the measures which he might adopt in cases of arrest under warrant." (Art. 216, C. C. P.)
It is the duty of an officer on being informed that a felony has been or is being committed, to pursue and capture the *Page 577 offender if possible, and in order to do so to secure all available information. Hill v. State, 37 Tex.Crim. Rep.,36 S.W. 660; Cortez v. State, 47 Tex.Crim. Rep.,83 S.W. 814. The foregoing general principles are fixed by our statutes and decisions. Under what circumstances did the officers enter appellant's house? The learned trial judge very clearly and concisely answers in his explanation appended to appellant's bill of exception No. 7, as follows:
"* * * the evidence showed that the witness, Sheriff L. L. Blaylock, and the other officers, had reliable information from two or three credible persons, that there were a couple of drunk men driving around the city of Cameron on the streets thereof, in a Ford automobile, and the number of the car in which they were driving was also given to the sheriff. Just as quick as the sheriff received this information, he started on a search for the men to arrest them, and in a short while located the Ford car with the number given him, parked in front of the defendant's house. That the sheriff and some of the other officers went inside the house of defendant to find and arrest the drunk men that they were looking for; they found them therein with some other parties, drinking beer, and two of the men were drunk. The defendant, Duda, was also present at the time. No search was made of the house or premises at said time, but the officers arrested the two drunk men and brought them to town before the magistrate, and filed complaints, and one of the men, viz.: Ray Gandy, pleaded guilty and was fined. The other men present at the house as well as the defendant, Duda, were brought to town at the same time. Later, and on the same afternoon and after the arrest as aforesaid, the sheriff and his deputy, Pope, sued out a search warrant and the premises were then searched for intoxicating liquors with the result as shown by the record. The court is of the opinion that the officers, after receiving the information of the drunk men as aforesaid, had a lawful right to pursue them and arrest them without warrant. * * * The matters and things in regard to intoxicating liquor which came under their observation at the time of the arrest of the drunken men, were legitimate and entitled them to sue out an affidavit for a search warrant to search the premises for intoxicating liquors as shown by the record, and the evidence was admissible."
The reasons given by the learned trial judge for admitting the evidence seem a complete answer to appellant's proposition. It would be useless to discuss the matter at length, it being sufficient to say that the officers were informed that the intoxicated *Page 578 parties had been driving the car; they had a description of the car and its number and had been advised that a felony had been committed by the parties driving the car, which offense not only endangered the lives of the offenders themselves, but of innocent people upon the streets of Cameron. If they had a warrant for the arrest of the parties who had committed the felony unquestionably they would have a right to enter appellant's house for the purpose of executing the warrant. Instead of the warrant they had the information called for in Arts. 215 and 216, C. C. P., and while they might not have been informed that the offenders were about to escape, yet the circumstances of the commission of the felony were such that the officers were bound to have known that an escape could be easily effected; hence under the information imparted to them they had the same right to enter appellant's house for the purpose of arresting the parties as they would have had if armed with a warrant. The things observed by them while in the house were properly useable in securing a subsequent search warrant.
Appellant apparently attaches some significance to the fact that the parties who, while in an intoxicated condition had been driving the automobile upon the streets, were not proceeded against for a felony but only charged with and convicted of drunkenness. The fact that for some reason the authorities proceeded against the parties on misdemeanor charges rather than upon a felony charge would in nowise affect the right of the officers to pursue and arrest because of the commission of a felony.
The motion for rehearing is overruled.
Overruled.