Brown v. State, 40084

• Decision Date: 07 May 1956
• Docket Number: No. 40084,40084
• Citation: 227 Miss. 823,87 So.2d 84
• Parties: Hayden BROWN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 84

87 So.2d 84

227 Miss. 823

Hayden BROWN v. STATE of Mississippi.

No. 40084.

Supreme Court of Mississippi.

May 7, 1956.

R. O. Arrington, Jr., Hazlehurst, for appellant.

Joe T. Patterson, J. R. Griffin, Asst. Attys. Gen, for appellee.

ROBERDS, Presiding Justice.

Appellant Brown was convicted of reckless driving of an automobile in violation of Section 8175, Miss.Code 1942.

On this appeal he urges, first, that the lower court erroneously permitted the deputy sheriff to testify orally that he had a search warrant at the time he undertook to stop and apprehend appellant, and, second, that under the state of the record here appellant was not guilty of any crime.

The questions are grounded in this state of facts: Mr. P. B. Burney, a deputy sheriff of Copiah County, testified that he was in Georgetown, said county, in the company of the mayor of the town, and that Brown drove up in a 1954 Ford pickup truck; that he, Burney, had in his possession a search warrant. We will assume the warrant, if it existed, was directed to the search of the motor vehicle being driven by Brown, although this is nowhere stated. The testimony is simply that the deputy sheriff had a search warrant. When Brown got within about 200 feet of Burney and the mayor, Burney flagged Brown to stop. Brown was driving 15 to 20 miles per hour. Instead of stopping Brown kept going; whereupon Burney and the mayor each shot twice at the truck with pistols. Burney said they were trying to puncture the tires on the truck and force Brown to stop. However, they did not hit the tires and Brown did not stop. Instead, he began to drive faster; whereupon Burney quickly got into his automobile standing nearby and began to chase Brown. Burney said he increased his speed to something like 75 or 80 miles per hour and that Brown was driving faster than he was. In other words, Brown was putting distance between himself and his pursuer. This continued for some five to six miles, when Burney gave up the chase and turned back to his original destination. This action on the part of Brown constitutes the reckless driving charged to be the criminal offense.

Now as to proof of the existence of the search warrant. This was an oral statement by Burney that he had in his possession a search warrant when he undertook to 'flag' Brown. Defendant objected to that, insisting that the warrant itself was the best evidence of its existence and terms, and that the original should be offered in evidence, or proof be made that it was lost, or could not be produced,--in other words, that proper showing be made to justify admission of secondary proof of the existence of this written document and its contents and the power and authority vested by it in the officer. We think the contention is well-taken. The announced rule was recognized in Mitchell v. State, 139 Miss. 108, 103 So. 815. Defendant had a right to see and examine this writ to determine its legality and the powers conferred by it upon the officer. The writ might have been illegal and void, or if legal, it might not have described, as an object of its search, the vehicle then being driven by defendant.

As to the action of defendant in attempting to flee from the officers, it will be noted that, under the rule and state of the evidence just set out, the officer, in legal effect, had no warrant for his arrest. Defendant was not committing any crime, misdemeanor or felony, in the presence of the officers. Nor is it claimed by the State that defendant was engaged in the commission of any crime at the time of the attempt to stop him, or that he had theretofore committed any crime, or that the officers had cause to think he had committed, or was then committing, a crime. Nor is it shown that the defendant knew who the officers were who attempted to stop him, or, for...