Bogard v. State, 45725
|233 So.2d 102
|02 March 1970
|William Hardin BOGARD, Jr. v. STATE of Mississippi.
|United States State Supreme Court of Mississippi
Frank K. Odom, Greenwood, N. Shelton Hand, Jr., Gulfport, for appellant.
A. F. Summer, Atty. Gen., by Guy N Rogers, Asst. Atty. Gen., and Wade H. Creekmore, Jr., and James H. Creekmore Special Asst. Attys. Gen., Jackson, for appellee.
This is an appeal from the Circuit Court of Leflore County, Mississippi, wherein the appellant was convicted on the charge of armed robbery and was sentenced to a term of twenty-five years in the Mississippi State Penitentiary. From that judgment this appeal is taken.
On the night of February 12, 1969, at approximately 8:00 o'clock, three Negroes, hooded with ski masks, entered Malouf Music Company in Greenwood, Mississippi, armed with a sawed-off 12-gauge shotgun, a 30 calibre rifle and a 45 calibre automatic pistol, and robbed the company of approximately $14,000. The robbers taped and bound Abe Malouf, one of the owners, and Harold Markham, Howard Cox and Alphonso Pinkie, three employees, forcing the three employees to lie on the floor, face down, where they were bound. The money which was taken consisted of currency and approximately $3,000 in coin. The money was placed in bags belonging to and marked 'Malouf Music Company,' and 'Bank of Greenwood.' The robbers escaped in Mr. Abe Malouf's 1967 yellow Chrysler.
Shortly after the robbery the Greenwood Police Department and the Mississippi State Highway Patrol were notified and Highway Patrolman James Ables came to the scene and talked at length with Abe Malouf and Harold Markham. Mr. Malouf and Mr. Markham gave Patrolman Ables the details concerning the robbery and due to an unusual incident which took place on February 3, 1969, hereinafter discussed, advised Patrolman Ables that the robbers could be traveling in a black vinyl over blue 1968 Buick automobile bearing the words 'GS California' on the left rear fender. Shortly thereafter Patrolman Ables transmitted this information to Highway Patrolman H. W. Miller. Thereafter around 11:00 P. M. on the night of the robbery Patrolman Miller saw the 1968 Buick automobile, 'sitting down low in the rear' that was of black vinyl over blue color, bearing the words 'GS California' on the left rear fender. He followed the Buick automobile in which four Negro men were riding and, after summoning aid from Patrolman Ables, who came, he arrested the appellant and his three companions. The money sacks marked 'Malouf Music Company' taken in the robbery were recovered from the trunk of the automobile, which was searched, along with Malouf Music Company receipts, three pair of gloves and ski masks, a 32 calibre pistol, a 30 calibre carbine rifle and a 12-gauge sawed-off shotgun. The 45 calibre Colt automatic pistol was found in the glove compartment. Some of the money was found on the occupants in the automobile, and Mr. Malouf's watch was found in the pocket of a blue jacket which was in the trunk of the Buick.
The Buick automobile mentioned to Patrolman Ables by Abe Malouf and Harold Markham had been seen on the night of February 3, 1969, by Mrs. Malouf. The demeanor of the Negro sitting in the car and its presence disturbed Mrs. Malouf who called Mr. Markham's attention to the car parked near Malouf Music Company occupied by a Negro male. Mr. Markham walked to the car and talked to the Negro asking him, 'What do you want down here?' The Negro replied: 'Is the guys gone?' Mr. Markham questioned: 'What guys?' The Negro never said anything but sat in the car. Mr. Markham then walked behind the car, noticed the tag, No. 42C6033, and the words 'GS California' on the left rear fender of the black vinyl over blue colored 1968 Buick automobile. He went back into the office and reported this to Mr. Malouf and stated that he should notify the police because of the suspicious acts of the man. Mr. Markham checked the doors of the store to be sure they were locked. A little later on the same night Mr. Malouf saw a Negro male enter the store under what Mr. Malouf considered unusual circumstances. The Negro came into the store, went behind the counter and looked over the store and its contents. He refused to answer Mr. Malouf who asked him if he could do anything for him. The Negro then turned and walked out of the store. The suspicious actions of this Negro in the store, together with the fact that a Negro had been sitting in the Buick parked outside, caused Mr. Malouf to notify the Greenwood Police at that time of the circumstances and to give them the number of the license plate of the car. It was discovered by the police that the Leflore County, Mississippi, license plate on the Buick had been stolen from a 1957 Chevrolet of Itta Bena, Mississippi.
The appellant objected throughout the entire trial to the admissibility of the evidence taken from the car on the grounds that there was not probable cause for the arrest without a warrant in the case. From a verdict, judgment against the appellant and a sentence of twenty-five years in the Mississippi State Penitentiary, the appellant appeals.
The sole question which requires our consideration is whether or not Patrolman Miller had probable cause to stop the 1968 blue Buick with the stolen license plate and arrest appellant. Appellant urges probable cause did not exist and assigns as principal authority the case of Branning v. State, 215 Miss. 223, 60 So.2d 633 (1952). In that case it was held that in order to arrest for a felony without a warrant, when the crime was not committed in the presence of the person making the arrest, the arresting officer must have reasonable grounds to believe not only that a felony had been committed but that the person arrested is the party guilty thereof. In McCollum v. State, 197 So.2d 252, 254-255 (Miss.1967), this Court established the following from the...
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