Brown v. State, 39581

• Decision Date: 07 February 1955
• Docket Number: No. 39581,39581
• Citation: 77 So.2d 694,222 Miss. 863
• Parties: Hayden BROWN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 694

77 So.2d 694

222 Miss. 863

Hayden BROWN v. STATE of Mississippi.

No. 39581.

Supreme Court of Mississippi.

Feb. 7, 1955.

W. M. Broome, Crystal Springs, Arrington & Arrington, Hazlehurst, for appellant.

J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant, Hayden Brown, was convicted in the Circuit Court of Copiah County of the unlawful possession of intoxicating liquors, and was sentenced for a second offense. Miss.Code 1942, Sec. 2613(b).

On September 26, 1953, Mayor J. A. Steen of Georgetown in Copiah County, Sheriff Stevens and Deputy Sheriff Bufkin obtained a search warrant to search the residence and surrounding premises of Brown. In the front of the house was a cafe, and in the rear were his living quarters. The three officers drove up to the place, and Sheriff Stevens went into the front door, the cafe part, to serve the search warrant. He served it upon a woman who was in charge of the cafe and premises. Steen and Bufkin proceeded around to the rear of the premises without going inside the building. It was about 9 o'clock at night, and from the darkness they saw Brown hand a can of beer to one of several men standing around a small car port at the back of the building. Steen walked over to a large tub nearby and removed from it a tarpaulin half covering it. The tub contained ice and beer. Next to it was a gallon jug of whiskey. When he saw the officers, Brown grabbed the jug and ran across his yard to the front of his place, and threw it on the other side of the street. At that time Steen caught Brown and arrested him. Steen testified that Sheriff Stevens 'then came out of the back door', and that the officers thereupon went across the street and picked up the jug of whiskey which Brown had thrown.

The record was ample to support the verdict and judgment of conviction of appellant for unlawful possession. Appellant contends that the evidence shows that the whiskey was found by Steen and Bufkin and the search was made by them before Sheriff Stevens served the search warrant upon the woman in charge of the cafe, and that therefore the search was invalid under Burgess v. State, 1953, 217 Miss. 746, 65 So.2d 260. Although evidence gained by use of the search warrant was objected to by defendant at the trial for other reasons, this ground of objection was not made to the circuit court. Moreover, it has no merit. Stevens went directly in the front door after the officers drove up to the place and served the search warrant on the woman who operated the place and 'who was in charge of the house.' That is undisputed on this record. Appellant also says that it was the obligation of Sheriff Stevens to search the premises to see if the owner, Brown, was present before he served the search warrant on anyone else. Code Section 2614 provides that a copy of the search warrant 'shall be served on the owner or person in possession if such person be present or readily found.' It is not necessary for an officer to search the entire premises for the owner and to ascertain first whether the owner is anywhere on the premises, before he can properly serve it upon a person in possession of the premises, as was the woman operating the business here. She was the person in possession of the premises and in the front of the building where business was being transacted. The fact that appellant might have been in the back yard, unknown to Sheriff Stevens, does not vitiate the service. It was made in accordance with Section 2614.

Defendant offered no evidence. At the close of the State's case, the court reporter's transcript shows that 'in chambers' defendant's attorney made to the court a lengthy motion to exclude the State's evidence and to direct a verdict for defendant. The court overruled that motion. Appellant argues that because the court heard 'in chambers' his motion for a directed verdict, he was denied his right under Mississippi Constitution, Sec. 26, to a 'public trial by an impartial jury * * *'; that since this motion was heard and overruled in chambers his trial was not public; that this constitutional right is absolute and cannot be waived by a defendant; and that appellant does not have to show any prejudice to him in order for this action of the trial court to constitute reversible error. All of the evidence was presented to the court and jury in open court. Appellant complains only about the court hearing in chambers his motion for a directed verdict. Appellant in nowise objected to this procedure, and, in fact, actively participated therein by initiating his motion in chambers. Manifestly there was no prejudice to appellant. Since appellant actively participated in the hearing in chambers, we think that he waived any right to complain of that procedure. 14 Am.Jur., Criminal Law, Sec. 143; 23 C.J.S., Criminal Law, Sec. 963, page 289; Annotation, 156 A.L.R. 265, 294 (1945); Cf. Carter v. State, 1911, 100 Miss. 342, 345, 56 So. 454; Hollis v. State, Miss. 1954, 74 So.2d 747. However, in other cases with different circumstances a hearing by the court in chambers might result in reversible error. The better practice would be for the trial judge to retire the jury and for him to remain in the courtroom to hear and pass upon the motion. The...