Branning v. State

• Decision Date: 27 October 1952
• Docket Number: No. 38488,38488
• Citation: 60 So.2d 633,215 Miss. 223
• Parties: BRANNING v. STATE.
• Court: Mississippi Supreme Court

Page 633

60 So.2d 633

215 Miss. 223

BRANNING v. STATE.

No. 38488.

Supreme Court of Mississippi.

Oct. 27, 1952.

Russell Wright, J. T. McDonald, Meridian, for appellant.

J. P. Coleman, Atty. Gen., Joe T. Patterson, Asst. Atty. Gen., for appellee.

ROBERDS, Presiding Justice.

Appellant was convicted of the unlawful possession of a narcotic, to-wit, five tablets of morphine, in violation of Sections 6846 and 6855, Miss.Code 1942, and sentenced to serve three years in the state penitentiary.

The only contention made upon this appeal is that his arrest was unlawful and that the evidence of such possession, obtained after arrest, was inadmissible. The question arises under this state of facts:

In June, 1951, the sheriff of Noxubee County, Mississippi, appeared in the City of Columbus, Lowndes County, said state; contacted Mr. Vickers, the chief of police of said city, and told him that a drugstore in Brooksville, Noxubee County, had been burglarized; that he suspected a man who he then understood was staying at the Gilmer Hotel in Columbus; that the reason he suspected this man was because he had been in the drugstore the day before the night of the burglary. The sheriff did not say whether he knew that of his personal knowledge or had been so informed. He did not know the name of the man but did have, and gave to the chief, a description of him and of his woman companion and the automobile in which they were traveling. The sheriff and chief of police went to the Gilmer Hotel to investigate. They found that appellant, whose name they then learned, and his companion had been at that hotel but had then checked out. The sheriff returned to Noxubee County. The next day the chief and the captain of police, cruising about the city in separate antomobiles, but in contact with each other by radio, saw a car traveling one of the main streets of the city of the description given them by the sheriff. The captain of police, being in front of the chief, caused appellant to pull into the curb and stop, as the chief also approached. Both policemen started towards the car occupied by appellant, and his companion to arrest appellant, whereupon they saw him take something from his person and place it in the ash tray of his automobile. They arrested appellant without a warrant, took from the ash tray a small box containing the five tablets of morphine. This was the evidence upon which appellant was convicted of the crime involved in this prosecution. He objected to evidence of his possession of the morphine under the circumstances, contending that the chief of police had no reasonable ground to believe that he had committed the burglary of the drugstore at Brooksville. That is the question for our decision.

Section 2470, Miss.Code 1942, authorizes an officer, or a private person, to arrest another without warrant 'when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it'. The sheriff was a credible person and we may assume, as do appellant and the State, that the drugstore had been burglarized. Whether appellant, or another, did so does not appear. The sheriff did not testify. The question narrows to the query whether the mere fact that appellant had been in the drugstore some time during the day before the burglary that night constitutes reasonable ground for believing he committed the crime. We do not think so. There may have been fifty or more persons in the store that day. The fact alone and of itself that appellant was one of these, constitutes no reasonable ground for believing he committed the burglary. The principles and holdings in the following cases, although the facts vary, as is always the case, preclude the admissibility of this testimony under the facts of this case. Orick v. State, 140 Miss. 184, 105 So. 465, 41 A.L.R. 1129; Mapp v. State, 148 Miss. 739, 114 So. 825, (Retrial 152 Miss. 298, 120 So. 170); Smith v. State, 160 Miss. 56, 133 So. 240; Castillow v. State, 160 Miss. 473, 135 So. 205; Laster v. Chaney, 180 Miss. 110, 177 So. 524; McGowan v. State, 184 Miss. 96, 185 So. 836; Craft v. State, 202 Miss. 43, 30 So.2d 414; Hubbard v. State, 202 Miss. 229, 30 So.2d 901; Shedd v. State, 203 Miss. 544, 33 So.2d 816; Acuna v. State, Miss., 54 So.2d 256.

Recitals of the facts and an analysis of the principles involved in the foregoing cases would unduly lengthen this opinion. These will be disclosed by a reading of the cases. Perhaps the pronouncement most directly applicable to the facts of the case is that which appears in the Craft case [202 Miss. 43, 30 So.2d 416]. After referring to the provisions of said section 2470 the Court said, 'It is not enough that there is good ground to believe that a felony has been committed, but the ground for the belief must include also as an element essential to the right to arrest that the party to be arrested is the person guilty of the felony. Without the second element the first had as well not exist. And it is not enough that there was good ground to believe that the person proposed to be arrested was present at the time the felony was committed. This was in effect so held in Cochran v. State, 191 Miss. 273, 276, 2 So.2d 822, 823, a case where an arrest was made on direct information that the person arrested was present, and wherein nevertheless the arrest was held to have been unlawful, for the reason that 'some degree of participation in the criminal act must be shown in order to establish any criminal liability. * * *" In the case at bar the most that is shown is that appellant was in the drugstore some time during the day prior to the commission of the crime the night following.

The State, in support of its contention, that the arrest was lawful cites three cases--Kennedy v. State, 139 Miss. 579, 104 So. 449; Love v. State, 142 Miss. 602, 107 So. 667, and Wallace v. State, 149 Miss. 639, 115 So. 778. Neither case supports the contention. In the first case Kennedy was convicted of distilling. Simmons, a private citizen, four days before the arrest, went to premises under lease to Kennedy and another and found a still thereon. Three days later Simmons revisited the scene and found the mash fermenting. Simmons reported all of this information to the sheriff, and requested the sheriff to go with him the next day to the still, which the sheriff did. Simmons went forward while the sheriff remained behind. Simmons saw Kennedy and another operating the still. He arrested them, without a warrant, the meantime calling the sheriff, who quickly appeared and handcuffed the operators. Here, it is seen, Kennedy was the lessee of the premises upon which the still was being operated. Simmons saw him in the act of committing the crime before the arrest.

In the second case Mary Love was convicted of being an accessory to the crime of incest. A citizen reported to the chief of police of Clarksdale that a Dr. Blocker was having sexual relations with his stepdaughter in a house operated by Mary Love. A policeman was assigned to watch the house. This he did from a nearby residence, and, three days before the arrest, he saw Blocker on the back porch of the Love house. Blocker then went into the house and remained thirty minutes. He came out and drove his car down a back street and then came up in front of the house, whereupon the stepdaughter emerged from the house, got into the car and she and Blocker drove away. On the day of the arrest, after the foregoing events, the policeman was told by a neighbor that Blocker and the stepdaughter were then in the Love house together. The policeman saw the Blocker car parked to the rear of the Love house. He had theretofore taken down the tag number. The policeman then broke into the house without a warrant, after calling to the parties without eliciting any response. Blocker and the stepdaughter were nude and in the act of sexual intercourse. This, it is immediately seen, is quite a different case from the one at bar.

In the last case Wallace owned land the timber upon which was owned by another party. That party went upon the land to look after his timber and he discovered a still on the land. He reported that to a deputy sheriff, who reported it to the sheriff. The sheriff and deputy and this citizen went upon the land; found Wallace and another operating the still; saw them leave following a path...