(dissenting).
In the recent case of French v. State, No. 27,637, in an opinion by Presiding Judge Morrison, the ordinance here in question was upheld. Judge Davidson dissented and expressed the view that the ordinance was void.
The writer joined in affirming the conviction in French v. State, No. 27,637, 284 S.W. 2d 359, entertaining the view that Art. 214 C.C.P. authorized municipal authorities to establish rules authorizing the arrest without warrant of persons “under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws,” without regard to whether the place of the arrest is or is not a “suspicious place.”
As I view it, the question here is whether there is sufficient evidence to show that the arrest was made under circumstances reasonably showing that appellant had been guilty of or was about to commit an offense against the law.
The facts and circumstanses upon which the police officer acted include the following:
He knew appellant and his companion; knew them as “police characters”; had information that appellant “was a dealer in narcotics”; told appellant before the search “We had heard that he had been pushing (selling) heroin out in the Denver-Harbor addition” (the arrest occurred in that addition) ; was familiar with the police records of the two men and knew appellant had “been in the penitentiary before for narcotics.”
Also he had information that appellant’s companion “was wanted by the Burglary and Theft division, and also from the bulletin, for robbery.”
Also, the officer knew that appellant had been arrested several times for “suspicion of narcotics,” and perhaps once for burglary, and that his companion had been arrested several times for carrying a pistol and had been filed on several times for procuring.
With this information, the officer saw appellant and his companion Haynes, about 5 P.M., sitting in an automobile which was parked on the street some fifty feet from a service station. Two tires on the car were blown out and the right side was bent.
*300The two men were seated in the car as the officer drove by, Haynes “sitting with his head kind of slumped over the wheel,” and appellant seated on the right side.
The officers proceeded to the next intersection, got out of their car and came back. When they got back, appellant was standing beside the car and his companion Haynes had gone into the nearby service station.
Asked what he said to appellant before the arrest, the police officer testified “I told him we had been having some bad reports on him; that we had heard that he had been pushing (selling) heroin out in the Denver-Harbor addition.”
Officer Tucker also testified:
“Q. When you returned back to where you had seen the defendant in company with Haynes parked, what did you do, Officer Tucker ? A. Got out of the car and went to1 the defendant and started talking to him. I identified myself, and his eyes started getting big, and he seemed to get very nervous, so I told the fellow he was under arrest for suspicion, and started searching him.
“Q. Did you search him? A. Yes sir, I searched him.”
Upon these facts the officer searched appellant and found him to be in possession of a narcotic. He also searched the car and arrested and searched appellant’s companion Haynes, who was under the influence of a narcotic and whose arm showed signs of a recent injection of a hypodermic needle.
If we were correct in Holt v. State, 144 Texas Cr. R. 62, 160 S.W. 2d 944, (opinion by Judge Beauchamp); in Holt v. State, 144 Texas Cr. R. 88,160 S.W. 2d 957, (opinion by Judge Graves) and in the French case, in upholding the validity of the ordinance authorizing arrest on probable cause to believe that accused had been guilty of some felony or breach of the peace, or threatened or was about to commit some offense against the law, though the ordinance did not require nor the facts otherwise show anything about the place of the arrest being a suspicious place, then under such holding the judgment should be affirmed.
I am at a complete loss to understand how the ordinance may be valid as applied to French and invalid as to appellant, and respectfully dissent from such holding.