The offense is burglary; the punishment, confinement in the penitentiary for two years.
The Merkel Motor Company's place of business was burglarized at night. The property taken from the building was money, automobile casings, and tubes. The money consisted of nickels, quarters, and half dollars. On the same night appellant and Raymond L. Smith were arrested in the vicinity of the building. Near them were the automobile casings belonging to Merkel Motor Company. Upon being taken in custody, appellant and Smith were searched. They had in their possession a number of nickels, quarters, and half dollars, and two screw drivers. An examination of the building showed that an instrument of some character had been used to open the window. The screw drivers found in the possession of appellant and Smith fitted the prints where the window was opened.
Appellant objected to the testimony of the arresting officer touching the finding of the money and screw drivers in his possession on the ground that the arrest was illegal. The officer had no warrant of arrest. The municipal authorities had enacted no ordinance under the provisions of article 214, C. C. P., authorizing the arrest without warrant of persons found in suspicious places, etc. In holding the arrest legal, the trial court made application of the provisions of article 325, C. C. P., *Page 382 reading as follows: "All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay."
The testimony of the arresting officer was, in substance, as follows: In performing his duties as night watchman, he was walking down an alley near the place of business of the Merkel Motor Company between 1 and 2 o'clock in the morning. Hearing a noise he went toward a vacant lot near the building of the Merkel Motor Company. He could see something in the dark about 18 feet from the building. Turning on his flash light, he saw two men on the vacant lot within 18 feet of the business house of the Merkel Motor Company. Appellant was within one and one-half feet of some unwrapped automobile casings, stooping over them. Neither appellant nor his companion had created any disturbance in his presence prior to their arrest. He did not know the building had been burglarized. No person had notified him that a felony had been committed. At this point we quote from the testimony of the officer as follows: "I threw my pistol on them and arrested them because they were in the dark and in a suspicious place and I did not know but what they were armed. I did not want them to have any advantage over me because I was alone. The large man, Bennett, was standing in the back of a short building by some automobile casings, that I presumed were stolen, and I did not want to take any chances on it. I threw my light on these two men at the same time. I saw the casings when I threw the light on them. They were new casings. When I threw my light on them, I could not see what Bennett was doing. He was in a foot or two of these casings. The other man was standing about six feet from them, Mr. Smith. When I threw my light on these two men, I told them to put up their hands and they did so. They had made no move before I told them to put up their hands. I do not think they had ever seen me until I flashed the light on them and he, Bennett, raised up."
The facts and circumstances related by the officer are deemed sufficient to support the conclusion that he had reasonable ground to suppose that appellant and his companion had stolen the automobile casings. It follows that we are of the opinion the trial court was not in error in making application *Page 383 of the provisions of article 325, supra. See Hammond v. State,49 S.W.2d 779. The case of Woods v. State, 119 Tex. Crim. 43,46 S.W.2d 704, is not deemed to support appellant's contention. There the arrest was made solely because the officer discovered the appellant at night in an alley in the towns of Whitesboro. The officer saw no property in Wood's possession or near him. There was no reasonable ground to suppose that Woods had stolen any property. The municipal authorities had enacted no ordinance under the provisions of article 214, C. C. P., warranting an arrest without warrant of persons found in suspicious places, etc.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.