Baldwin v. State

• Decision Date: 13 April 1936
• Docket Number: 32144
• Citation: 175 Miss. 316,167 So. 61
• Court: Mississippi Supreme Court
• Parties: BALDWIN v. STATE

167 So. 61

175 Miss. 316

BALDWIN v. STATE

No. 32144

Supreme Court of Mississippi

April 13, 1936

Division A

1 ARREST.

A misdemeanor is committed in "presence" of officer authorizing arrest by officer without a warrant, where misdemeanor is committed in his presence, where officer then and there acquires knowledge thereof through one of his senses, or from inferences properly to be drawn from testimony of his senses (Code 1930, section 1227).

2 ARREST.

Where deputy sheriff observed defendant with a paper sack and the neck of a bottle protruding therefrom at a time and place where deputy had been informed defendant intended to make a sale of liquor, and defendant fled hurriedly on catching sight of deputy, deputy was justified in inferring that bottle contained whiskey so as to authorize arrest without warrant and subsequent search of defendant (Code 1930, section 1227).

HON. JOHN M. KUYKENDALL, Judge.

APPEAL from circuit court of Desoto county, HON. JOHN M. KUYKENDALL, Judge.

Jim Baldwin was convicted of having intoxicating liquor in his possession, and he appeals. Affirmed.

Affirmed.

Logan & Barbee, of Hernando, for appellant.

The evidence for the state in this case is inadmissible for the arrest was illegal in that the officer making the arrest had no warrant or capias for the arrest of appellant, and the arrest was made at a time when it was not within the knowledge of the officer making it that the appellant was committing a misdemeanor in the presence of said officer.

Butler v. State, 135 Miss. 885, 101 So. 193; Fulton v. City of Philadelphia, 168 Miss. 30, 148 So. 346.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

The case of Farmer v. State, 150 Miss. 776, 116 So. 884, seems to be precisely in point here. In that case the court said:

"The officer testified that he had not arrested, or attempted to arrest, the appellant at the time he drew the bottles of whisky from his pocket, but that when he saw the appellant produce the bottles and break them, he then arrested him for a misdemeanor committed in his presence. The appellant did not testify as to what was done, resting his case upon the officer's testimony and upon the theory that the arrest was illegal.

"We do not think the officer's testimony shows an arrest prior to the production of the bottles of whisky. The officer had not announced his purpose to make an arrest until the appellant pulled the bottles of whisky from his pocket, which action showed that he had violated the law in possessing intoxicating liquor, and the officer then had a right to arrest the appellant without a warrant for committing the misdemeanor in his presence. We think, from the circumstances given in the record, that the arrest was lawful and that the evidence was properly admitted. Consequently, the judgment of the court below will be affirmed."

OPINION

Smith, C. J.

This is an appeal from a conviction for having intoxicating liquor in possession.

The appellant's complaint is that the evidence on which he was convicted, and which was admitted over his objection, was obtained by a police officer by means of an unlawful search. That evidence is, in substance, as follows:

A deputy sheriff testified that he had been informed by George Williams that he had purchased whisky from the appellant which would be delivered to him by the appellant shortly thereafter "on the west side of the Desoto Automobile Company." This deputy, accompanied by another, proceeded to the appointed place in an automobile and there awaited the consummation of the sale. The appellant and Williams appeared on the scene. The appellant had in his possession a paper sack from which protruded the neck of a bottle. Before he delivered it to Williams, he saw the deputy sheriff and his companion and immediately fled, but stopped and struck the sack and its contents on a brick. The sack contained a...