Ball v. State, 44254
| Decision Date | 30 January 1967 |
| Docket Number | No. 44254,44254 |
| Citation | 194 So.2d 502 |
| Parties | Olen BALL, Defendant-Appellant, v. STATE of Mississippi, Plaintiff-Appellee. |
| Court | Mississippi Supreme Court |
Lampkin Butts, Henry S. Davis, Jr., Laurel, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
Olen Ball was indicted for possession of a whiskey distillery and convicted in the Circuit Court for the Second Judicial District of Jones County. His two-year sentence to the state penitentiary was suspended by the trial judge and Ball was placed on probation for three years. He appealed on grounds of illegal search and seizure, and the general insufficiency of evidence to sustain a conviction.
Testimony showed that defendant was arrested following an early morning fire which destroyed a barn containing the still. The barn was located on land owned by defendant's mother. However, the defendant exercised some control over the property, as evidenced by his testimony and by a lease agreement made by him with Roosevelt Porter. By terms of the lease, Porter, who was also indicted, had use of the barn and pastureland.
On the date of the fire, July 1, 1965, defendant was spending the night in a small house situated some 100 to 300 feet from the barn. Between 3:00 and 4:00 a.m. he looked out the window of the house to see the barn 'in an extremely big blaze.' Not having a telephone, defendant went to his mother's house some distance away and called the sheriff to report the fire. At the time of the call he informed this officer that the barn was rented to someone else. Shortly afterwards the sheriff came to the scene to investigate the fire, and while present observed the still in the smoldering remnants of the barn. Later that morning the sheriff placed defendant under arrest and sent a deputy sheriff to the barn to make photographs of the still. The deputy's investigation was made without a search warrant.
Defendant assigns as error the following:
1. The court erred in admitting into evidence objects taken from, and photographs taken on, the premises by the deputy sheriff, because they were the fruits of an unlawful search and seizure.
2. The court erred in failing to grant a peremptory instruction for defendant because of the State's failure to prove defendant's guilt beyond a reasonable doubt.
In support of the first assignment of error the defendant argues that his invitation to the sheriff to come to the scene of the fire did not constitute consent to search without a warrant, and, even if it be conceded consent were granted to the sheriff, defendant contends the right to search did not extend to the deputy. He cites in support of this position Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953), and Lancaster v. State, 188 Miss. 374, 195 So. 320 (1940).
It is not necessary to determine whether there was in fact consent to search without a warrant. Here defendant claimed he had rented the barn to Porter, and that Porter had exclusive right to the use thereof. One testifying that property searched did not belong to him may not thereafter complain that the search was unlawful. Ross v. State, 140 Miss. 367, 105 So. 846 (1925). In many cases this Court has held that persons who are not owners or in control of premises searched cannot complain of evidence obtained as a result thereof. Craft v. State, 254 Miss. 413, 181...
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