concurring.
If the notion of “standing” had not been conceived by an English common law judge, an American appellate court surely would have thought of it. The concept is to limit the work of the judiciary, and when applied to constitutional issues “the general principle [is] that a party will not be heard to claim a constitutional protection unless ‘he belongs to the class for whose sake the constitutional protection is given.’ ” Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960).
On its face Article 38.23, V.A.C.C.P., commands:
“No evidence obtained by an officer or other person in violationa of [the Constitutions or laws of this State or of the United States] shall be admitted in evidence against the accused on the trial of any criminal case.” 1
*665That command is unconditional.2
The progenitor to Article 38.23 was enacted in 1925, and codified as Article 727a. C.C.P. 1925. Within two years the Court had conditioned implementation of the legislative mandate upon its belief that Texas courts “were required to make the same application of the principle involved [in the statute] as had theretofore been made by the Supreme Court of the United States, and by other jurisdictions in excluding evidence obtained in violation of the constitutional provisions,” Craft v. State, 107 Tex.Cr.R. 130, 295 S.W. 617, 618 (1927).
Accordingly, one of the first limitations on implementation of the statutory prohibition was imposed by the Court in Craft v. State, supra. That restriction was taken from a treatise, Cornelius on Search and Seizure, the Court being satisfied that “the rule is concisely stated,” viz:
“The right to complain because of an illegal search and seizure is a privilege personal to the wronged or injured party, and is not available to anyone else.”3
On rehearing the Court thought that the statute “was intended, and did have the effect, to change the rule adopted by this Court in Welchek v. State, 93 Tex.Cr.R. 271, 247 S.W. 524 [1922].” The Court then reasoned:
“At the time the Welchek Case was decided it had never been held that one whose rights were not wrongfully invaded could successfully oppose the receipt of evidence of crime obtained through an unauthorized search. The contrary seems to have been the rule as indicated in the various cases cited in the original opinion, which ... made proper disposition of the appeal.”
What the Court was actually saying is that by setting aside the Welchek “rule” admitting illegally obtained evidence, and replacing it with a diametrically opposed rule excluding the same evidence, the Legislature expected Texas courts to condition application of its rule on a federal concept of “standing;” it stayed with that position in, e.g., Allman v. State, 107 Tex.Cr.R. 439, 296 S.W. 580 (1927) (relying on Craft v. State, supra) and Jenkins v. State, 108 Tex.Cr.R. 184, 299 S.W. 642 (1927), and of course still does. I say the Court was wrong then, and repetition of that error over the years does not make it right.
The tenor of the times in which the commands were originally enacted and the clear legislative intent in doing so were demonstrated in my concurring opinion in Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983), and need not be iterated here. Suffice to say that prevailing search and seizure practices were found so odious that the Legislature determined to prevent them by enacting the predecessor to Article 38.-22, supra, as well as another that made it a penal offense to search without a warrant. The Court took a while to look into the legislative package, and then did not like what it found. See Odenthal v. State, 106 Tex.Cr.R. 1, 290 S.W. 743 (1927) and Jackson v. State, 107 Tex.Cr.R. 169, 295 S.W. 619 (1927).
The Legislature had found an emergency and an imperative public necessity in the fact that “there has been used against the citizens of this state evidence obtained in violation of the Constitution ... and that there is now no statute expressly forbidding the same.” On that finding, it insisted that such evidence not “be admitted in evidence against the accused.” The intendment and effect was to bar the forbidden evidence from the courtroom. Unlike constitutional protections that must be claimed by the person who seeks their shelter, the statutory provisions implement a legisla*666tive judgment to outlaw use of certain evidence against an accused.
The Craft Court fell into error when it tempered a legislatively promulgated rule excluding all evidence illegally obtained with a concept of “standing” to complain that the search for and seizure of that evidence was violative of constitutional protections. In following opinions the statement taken from Mr. Cornelius was reiterated by rote; see McFarlan v. State, 106 Tex.Cr.R. 384, 292 S.W. 885, 886 (1927); Yeager v. State, 106 Tex.Cr.R. 462, 294 S.W. 200, 201 (1927); Purswell v. State, 107 Tex.Cr.R. 121, 294 S.W. 1107 (1927). When the “soundness” of Craft came to be questioned, the Court responded, “We think a further discussion of the question there decided is uncalled for.” Laake v. State, 108 Tex.Cr.R. 206, 299 S.W. 643 (1927).
I join the opinion of the Court and for additional reasons herein given, I concur in the judgment of the Court.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. The second paragraph was added in 1965. It provides that should the issue be submitted to a jury and the jury find evidence was unlawfully obtained, "the jury shall disregard any such evidence so obtained.” Again, there is no condition or qualification of the accused attached to the command.
. A number of federal cases said by the Court to support that statement are cited, and no doubt they do.