(dissenting). — A synopsis of the state’s testimony is as follows: R. L. Gomillion, a special agent for the Texas & Pacific Railroad Company, while in the yards of the company at Abilene late at night, observed that the seal of a certain box car had been broken, and saw some merchandise between the rails of the track near the car. The merchandise consisted of two cases of coffee, a carton of chewing gum, and a wooden box containing an electric fan. A freight train going east was preparing to pull out at the time, and the car mentioned was in the train. After making the discovery, Gomillion observed the appellant about 100 feet away. The two approached each other. The officer had a flashlight and the appellant had a cotton-picking sack. At the command of the officer, the appellant picked up the merchandise and placed it in the officer’s automobile. The appellant was arrested by the officer and placed in jail. No warrant for the arrest was possessed by the officer. Some time after the appellant’s arrest, and while he was in jail, it was ascertained that instead of only two cartons of coffee, there were three taken from the car. Early the next morning while the appellant was in jail, the officer, in company with another, went to the home of the appellant, where they found some coffee hidden behind a barrel about thirty feet from the appellant’s house. It was inside of his enclosure and near his private residence. The wife of the appellant was there and was told by the officers that they wanted to look around the place. She told them to go ahead; that there was nothing there that she knew of. The coffee was found in the back yard behind a barrel, apparently hidden from view. It was taken to the city hall. The search was made after the officers had learned that there had been taken from the car three instead of two cartons of coffee.
From the state’s testimony the theory arises that the appellant, after breaking the seals and opening the car, took from it the three cartons of coffee and the other property men*218tioned; that he took one carton of coffee to his residence and hid it, and at the time of his arrest, had returned to the railroad yards with the intention of removing the remainder of the property taken from the car.
By his own testimony and by that of other witnesses, the appellant presented the defense of alibi. He also introduced testimony as to circumstances tending to show that the carton of coffee which was found in his yard may have been placed there by some other person. In the absence of the evidence obtained through the search, the facts would be insufficient to support the conviction. The circumstances detailed, including the possession of a part of the stolen property on the appellant’s premises, apparently filled the measure of proof demanded by the law governing circumstantial evidence.
Bill of exception No. 1 contains the following: “Be it remembered that the proof showed from such officer, Gomillion, who was a peace officer of Texas, as well as special agent for the T. & P. Railway Company, and from Sam Beam, policeman of Abilene, that at the time they made the search of the defendant’s premises the defendant was confined in the city jail of Abilene; that neither of them had the consent or permission of the defendant to search his premises; that neither of the officers making such search had a search warrant authorizing them to search the defendant’s premises so searched; and that when they went to such premises to search them, they found the defendant’s wife at home and told her that they wanted to look around over the place, and that the defendant’s wife told them to go ahead and look around, that there was nothing there that she knew of; that the search of the said premises was made solely and only by authority given them by such consent and permission of the defendant’s wife as implied from the said conversation with her relating thereto.”
In a written statement made after the search of his home and while he was in jail, the following appears and reference to it is made by the judge in approving the bill: “I understand the law raided my yard this morning and found a case of coffee. The law had my permission to come in my yard and get this case of coffee.”
The approved bill of exception, as well as the evidence upon the trial, precludes any reasonable contentions that at the time the officers searched the appellant’s premises they had from him consent or permission to do so. In the bill of exception, it is said that at the time of the search the appellant toas in jail and neither of the officers had the consent nor permission *219of the defendant to search his premises; that they found the appellant’s wife at home and told her they wanted to look over the place and she told them to go ahead; that the search was made solely upon such consent as her declaration implied. The bill of exception is approved with the above recitals. There are no contradictions of the bill. The qualification simply draws attention to the fact that after his place had been raided and the appellant informed thereof, he said that the officers had permission to go in the yard and get a case of coffee. The language of the appellant’s confession and the quotation in the bill carries with it no implication other than that the appellant’s acquiescence, such as was given, was after the search had been made.
Touching the implied authority of the wife to consent to the search of the home of the husband, so as to estop him from making effective opposition on the trial of a criminal case, to the use against him of evidence obtained in such search, there has been by this court no comprehensive and definite decision.
In Texas, there are some cases dealing with the subject in hand. In Alejandro v. State, 31 S. W. (2d) 456, the testimony of the officer that he had received permission from the wife of the appellant to make the search was opposed upon the sole ground that the wife, under the law, was not permitted to testify as a witness against her husband. In passing, the court said: “We have not been favored with a brief from appellant, and may not get his viewpoint, but we fail to discern merit in the objection,” (citing Pruitt v. State, 109 Texas Crim. Rep., 71, 2 S. W. (2d) 856.)
Apparently the matter was disposed of entirely upon the ground of practice, that is, namely, that proper objection to the testimony was not put forward.
In the Pruitt Case, supra, the state relied upon the testimony of an officer acquired in a search of the appellant’s premises upon the permission of his wife. The point was made that the wife was without authority and that coercion was used by the threat to get a search warrant. The court held that there was no such threat, and upon that point the decision rests.
In the Traylor Case, 111 Texas Crim. Rep., 58, the sheriff entered the appellant’s house to get a drink of water upon permission of his wife. While there, the officer observed a pair of shoes, which were used in evidence against the appellant. The objection to the receipt of this evidence was overruled upon the ground that the officer’s entry into the house was for a *220legitimate purpose and within the scope of the wife’s authority as mistress of the house.
In the Bannister Case, 112 Texas Crim. Rep., 158, there were found in the appellant’s house a number of bottles of intoxicating liquor. The husband was confined to his bed when the officers entered. The officer knocked upon the door and entered, upon the invitation of the husband, who was told by the officer that he wanted to look the place over for whisky. Bannister replied: “All right, go ahead.” On the trial, the point was made that the information acquired by the search was not admissible against the wife, who was on trial. The objection was not sustained. Both husband and wife were present and apparently were co-actors in the commission of the offense. It was stated upon the authority of Pruitt v. State, 109 Texas Crim. Rep., 71, 2 S. W. (2d) 856; Driskill v. United States, 281 Fed., 146; Goldberg v. United States, 297 Fed., 98; Francis v. State, 26 Okla. Cr., 82, 221 Pac., 785; that the permission given by the husband to make the search was admissible against the wife.
In Cornelius on Search & Seizure (2d Ed.), pp. 71 and 72, citing many cases, it is said:
“The weight of authority is that a wife has no authority to waive the constitutional rights of the husband.”
“It has also been held by the United States Supreme Court that consent to a search by defendant’s wife under coercion by officers of the law was not a waiver of defendant’s constitutional rights and was illegal.”
“The courts almost universally hold that the constitutional right to be immune from unreasonable searches is personal and can not be waived by any one except the defendant himself.”
The personal nature of the immunity of a citizen from unreasonable searches and seizures is affirmed in many judicial decisions. See Corpus Juris, vol. 56, p. 1174, sec. 54; also p. 1178, sec. 64.
In the case of Humes v. Taber, 1 Rhode Island, 464, the dwelling house of plaintiff was searched by permission of his wife. The court charged that the authority of the wife to give such permission was implied. On appeal, it was held that the law implies no such authority, the court stating: “Undoubtedly, the wife’s authority extends to the rendering of the ordinary civilities of life. If she invites a neighbor, friend, or even a stranger, to enter the house in the way of hospitality, such invitation would, under ordinary circumstances, *221be a valid license so to do. But to imply an authority to the extent contended for by the defendant in the present case would be dangerous. * * * It (the doctrine) is unsupported by principle, and would be mischievous in its consequences.”
The above quotation is from the case of People v. Weaver, 241 Mich., 616, 217 N. W., 797, applying the principle that the exemption from an unreasonable search of the dwelling was a personal privilege.
In the case of State v. Bonolo (Supreme Court of Wyoming), 270 Pac., 1065, a search warrant possessed by the officers being invalid, they sought to uphold the search of the appellant’s premises upon a conversation with the wife of the appellant in which the deputy sheriff told her he was an officer and asked her if she had any objection to their searching the premises. She replied: “No; go ahead; I can’t help it.” The search was held illegal and the testimony of the officer inadmissible upon the citation of many precedents, including cases from Tennessee, Kentucky, Oklahoma, and the United States Supreme Court, as follows: State v. Peterson, 27 Wyo., 185, 194 P., 342, 13 A. L. R, 1284; Jackson v. State, 153 Tenn., 431, 284 S. W., 356; Coleman v. Commonwealth, 219 Ky., 139, 292 S. W., 771; Hammond v. Commonwealth, 218 Ky., 791, 292 S. W., 316; Derefield v. Commonwealth, 221 Ky., 173, 298 S. W., 382; Taylor v. Commonwealth, 221 Ky., 216, 298 S. W., 685; Matlock v. State, 155 Tenn., 624, 299 S. W., 796; Cole v. State (Okla. Cr. App.), 262 Pac., 712; Cornelius on Search & Seizure, sec. 85. Other cases, including Amos v. United States, 255 U. S., 313, 41 S. Ct., 266, 65 L. Ed., 654, are cited in the Bonolo Case, supra, p. 1067. Many cases hold that the wife is without authority in consenting to a search to waive the constitutional immunity of her husband. See Rose v. State, 254 Pac., 509, and other cases cited in the textbook mentioned.
One who consents to the search of his premises upon the request of officers, disclosing their identity and stating the desire to search the premises, does not waive his immunity. See Cornelius on Search & Seizure (2d Ed.), p. 74, note 69; also p. 76, notes 71 and 72. See, also, Corpus Juris, vol. 56, p. 1184.
In the case of Conner v. State (Supreme Court of Indiana), 167 N. E., 545, a deputy constable, possessed of an invalid search warrant, read it in the presence of the wife of Conner, and she said: “You are welcome to search here. You won’t find anything. Come right in.”
*222The language was held not to constitute a waiver of the husband’s constitutional rights. The court said:
“But upon the language used by the wife while under the restraint of the writ-which had been served upon her, a waiver of the constitutional right, and an invitation to search and seize may not be predicated,” (citing Meno v. State, 197 Ind., 16, 164 N. E., 93.)
The search of private premises by an officer without a. search warrant or upon a void search warrant cannot be upheld, unless it appears that the consent of the owner was freely given or given with full knowledge of his rights and was not given because of the warrant or the official character of the officer A citizen is not required to resist an officer. See Banfill v. Byrd et al., 84 So., 227, 122 Miss., 288.
Where officers told the defendant that they had a search, warrant to search his place for liquor and defendant replied, “all right, white folks; search my house whenever you get. ready,” he did not give consent to the search or waive the requirements of a valid search warrant. Morton v. State, 136 Miss., 285. The consent under such conditions was not voluntary. The testimony of the officers touching the result of the search was excluded. To the same effect is State v. Watson, 133 Miss., 796; Smith v. State, 133 Miss., 730.
In the case of Buxton v. State, 258 Pac., 814, the Court of Criminal Appeals of Oklahoma, quoting from the opinion of' the Supreme Court of the United States in the case of Agnello v. United States, 70 L. Ed., 145, written by Justice Butler, said: “The search of a private dwelling without a warrant., is, in itself, unreasonable and abhorent to our laws. Congress, has never passed an act purporting to authorize the search of a. house without a warrant. On the other hand, special limitations have been set about the obtaining of search warrants:, for that purpose.”
After Stating the federal requirements for a search warrant: the opinion proceeded further: “And later, to the end that, government employees without a warrant shall not invade the homes of the people and violate the privacies of life, Congress-made it a criminal offense, punishable by heavy penalties, for any officer, agent, or employee of the United States, engaged, in the enforcement of any law, to search a private dwelling-house without a warrant directing such search. (Act of November 23, 1921, c. 134, par. 6; 42 Stat. at L. 222, 223; Comp. Stat., sec. 10184a; Fed. Stat. Ann. Supp., 1921, p. 230).”
*223■ In the case of Meno v. State, 197 Indiana, 16, the facts were stated in part as follows:
“At the time of the arrival of the officers they found appellant with several men in an upstairs room, some of whom were playing poker. One of the officers informed appellant and the ■others that they had a search warrant for the search of the ■premises, to which statement appellant replied, ‘All right, go right on. There is nothing about here, go right on and search .all you want to.’ ”
The legality of the search was attacked upon the ground that the search warrant was invalid. The state answered the contention with the claim that the search was with the consent of the accused. Opposing such contention, the court made the following remarks: “An invitation to search one’s person or possessions, and seize a person or property under the Constitution, must be free from any coercion, duress, or fraud. One who, upon the command of an officer authorized to enter and search and seize by search warrant, opens the door to the officer and acquiesces in obedience to such a request, no matter by what language used in such acquiescence, is but showing a regard for the supremacy of the law. Such actions do not ■constitute an invitation.”
In the case of Salata v. United States, 286 Fed., 125, the Circuit Court of Appeals, Sixth Circuit, in the third subdivision of the syllabus, is found the following
“A statement by defendant, when a government officer showed him a liquor search warrant, to ‘go ahead’ with the search, did not waive defendant’s constitutional rights, if the search warrant was unlawfully issued, since it is not to be construed as an invitation to search the premises, but rather as a statement of the intention not to resist search under the warrant.”
In its opinion, the court said :
“The question here presented is substantially the same question, arising upon practically the same state of facts as the question decided by the Supreme Court of the United States in Amos v. U. S., 255 U. S., 313, 65 L. Ed. 654.”
From the case of United States v. Slusser, 270 Fed., 818, first paragraph of the syllabus, the following is taken: “Consent of the owner that -a person announcing himself a prohibition agent showing a badge and demanding the right, might search premises held not a waiver of constitutional right to protection against unreasonable search.”
From the opinion we quote: “The search so permitted by *224Slusser, after declaration by the prohibition officer, with a display of his badge, that they were there to search the premises, was not by such consent as will amount to a waiver of constitutional rights, but, on the contrary, is to be attributed to a. peaceful submission to officers of the law.” •
From the first subdivision of the syllabus in the case of' United States v. Rambert, 284 Fed., 996, the following is taken: “Submission by a citizen to acts of an officer will not be taken as consent to an unlawful search or arrest, nor deprive the citizen of his constitutional rights, unless the evidence clearly shows that the submission was really voluntary, with a desire' to invite search,” (citing Youman v. Commonwealth, 189 Ky.,. 152, 13 A. L. R., 1303; Amos v. United States, 255 U. S., 317, 65 L. Ed., 654).
From the case of Duncan v. Commonwealth (Ky. Ct. App.), 250 S. W., 101, the following quotation is taken:
“We have, then, the question whether an officer, who discloses his identity as such, or who is known to be such, may lawfully search the home of one in his absence, by consent or acquiescence of the wife, who is present at the home. For the purposes of this appeal, it is unnecessary to determine whether under any and all circumstances a man’s wife, in his absence, may or may not waive his constitutional rights. It is only necessary to decide whether, under the facts and circumstances in evidence, and the coercion to be implied therefrom, there was. an effectual waiver upon the part of the wife, so as to authorize the search.
“The case of Amos v. United States, 255 U. S., 313, 41 Sup. Ct., 266, 65 L. Ed., 654, furnishes a complete answer to this inquiry. * * * In response to the argument that the constitutional rights of the defendant had been waived by this action of his wife, that court said: 'The contention that the constitutional rights of defendant were waived when his wife admitted to his home the government officers, who came without warrant, demanding admission to make search of it under government authority, cannot be entertained. We need not consider whether it is possible for a wife, in the absence of her husband, thus to waive his constitutional rights, for it is perfectly clear that, under the implied coercion here presented, no such waiver was intended or effected.”
As shown above, the declaration of the United States Supreme Court, quoted from Amos v. United States, supra, has been cited with approval in many cases wherein it has been held that the consent or acquiescence of the wife in the search *225of the private residence during the absence of the husband would not render admissible against him the result of the search in a criminal prosecution against him. See Hays v. State (Okla. Cr. App.), 261 Pac., 232; also Carignano v. State (Okla. Cr. App.), 238 Pac., 507.
In the case of Veal v. Commonwealth, 251 S. W., 648 (Ky. Ct. App.), it is said: “This question, in so far as it related to the power of the wife to grant permission to police officers to search her husband’s house in his absence, has been decided contrary to the contentions of the commonwealth in the cases of Duncan v. Commonwealth, 198 Ky., 841, 250 S. W., 101; Amos v. U. S., 255 U. S., 313, 41 Sup. Ct., 266, 65 L. Ed., 654; Potowick v. Comth., 198 Ky., 843, 250 S. W., 102; Hart. v. Com., 198 Ky., 844, 250 S. W., 108.”
From the case of Gilliland v. Commonwealth (Ky. Ct. App.), 6 S. W. (2d) 467, we quote as follows: “We, however, have held that the consent of the wife of defendant whom the searching officer found in or on the premises of her husband was not sufficient to create imputed consent by the latter so as to bind him and to thereby render the discoveries made by the search competent evidence against him, and some of the cases so holding are Duncan v. Commonwealth, 198 Ky., 841, 250 S. W., 101; Potowick v. Commonwealth, 198 Ky., 843, 250 S. W., 102; and Veal v. Commonwealth, 199 Ky., 634, 251 S. W., 648. The principles announced by all of the cited domestic cases are also sustained by foreign ones and text-writers, and which are cited in our earlier opinions on the questions referred to.”
In the instant case, the appellant’s wife was a negro woman. The state’s witnesses were officers. When the officers came to the home of the appellant, he was in jail, where they had previously placed him. They did not impart this information to the wife but simply said that the'y wanted to look over the place. She said, “Go ahead.” These facts should not be regarded as constituting the waiver of a constitutional right, either of the wife or the husband, but particularly the husband. The officers went to the appellant’s home for the express purpose of searching it and were in the wrong in failing to procure a search warrant. Being officers, their statement implied that they had a right to act as such. They had taken the oath of office to obey the Constitution and laws of the state. The Constitution demanded that they make no unreasonable search, and the law commanded that they make no search without a warrant. That they had done these things, it was the right of the wife of the appellant to assume. Upon such assumption *226her acquiescence in the search of her home would, in the opinion of the writer, clearly be no waiver of the constitutional right of her husband to immunity from an unreasonable search. That a search obtained under such circumstances is reasonable, we think, cannot be admitted without violence to the letter and spirit of the constitutional inhibition against an unreasonable search. By the law of this state, article 714, C. C. P., 1925, the appellant’s wife was forbidden to give evidence against him, and in the opinion of the writer, by article 1, section 9, Constitution of Texas, and article 727a, C. C. P., she was inhibited from furnishing evidence against him by the transaction revealed by the record.
The remark of the appellant’s wife should be construed as a mere acquiescence or obedience to official authority. There was no disclosure by the officers of their want of authority to search, and manifestly the implication to the appellant’s wife that they had such authority was compelling. The act of the officers brings them within the purview of the declaration of the Supreme Court of the United States in the case of Agnello v. United States, 70 L. Ed., 145, from which the quotation is taken above. The conclusion that the circumstances reflected by the record do not show a consent to the search of the appellant’s home which was binding upon him seems supported by the great weight of authority, both by way of writers of textbooks and of judicial expression. Specific support is found in the decisions of the courts of many of the states of the Union of the conclusion that the facts developed in the present record show that the evidence against the appellant was obtained by the search of his home in violation of the Constitution of the United States and of this state and received against the command of the statute of this state, article 727a, C. C. P., declaring that evidence illegally obtained shall not be received. Moreover, in the opinion of the writer, the admissibility of the evidence was condemned by the decisions of the Supreme Court óf the United States, notably Amos v. United States, 65 L. Ed., 654, and Agnello v. United States, supra, together with many cases in which the announcements in the cases mentioned have been approved by subsequent decisions, many of which are cited in this opinion.
For the reasons stated herein, I find myself unable to agree with my associates touching the disposition of the appeal, ■ and respectfully enter my dissent from the decision affirming the judgment.