Burnside v. State
| Citation | 144 Miss. 405,110 So. 121 |
| Decision Date | 08 November 1926 |
| Docket Number | 25965 |
| Court | United States State Supreme Court of Mississippi |
| Parties | BURNSIDE v. STATE. [*] |
1. CRIMINAL LAW.
Testimony of officer procuring evidence will be taken as true for purpose of determining whether evidence was secured by unlawful search of person.
2. CRIMINAL LAW. Evidence secured from woman in scuffle with her and husband, during search of husband's premises, after commanding her to deliver liquor concealed under dress, held procured by unlawful search, and inadmissible.
Evidence secured from woman who had secreted bottle of liquor under her dress during search of husband's premises by commanding her to deliver the liquor in a threatening manner and finally securing it in scuffle between her husband officers, and herself, held procured by unlawful search, and inadmissible.
3. CRIMINAL LAW.
When officer, without authority of law, violates security of person by demanding and coercing him into doing something not required by law, as delivery of liquor concealed on person such act is result of force, and not free and voluntary act.
4. SEARCHES AND SEIZURES.
Search of person may be made in a lawful way.
APPEAL from circuit court of Attala county, HON.W. W. MAGRUDER, Special Judge.
Mary Burnside was convicted of unlawful possession of intoxicating liquor, and she appeals. Reversed, and defendant discharged.
Judgment reversed, and appellant discharged.
James T. Crawley, for appellant.
The court erred in admitting over the objection of the appellant the testimony of witnesses Scrivner and Brazeale. Cuevas v. Gulfport, 99 So. 503; Sanders v. State, 106 So. 822; Brewer v. State, 107 So. 376. The court erred in not sustaining the motion of appellant for a peremptory instruction. Comby v. State, 106 So. 827; Robinson v. State, 108 So. 903.
J. A. Lauderdale, Assistant Attorney-General, for the state.
I. Counsel for appellant objected to the testimony of the officers on the ground that the bottle of liquor was procured by an illegal search of appellant's person and that for this reason the testimony was inadmissible. We admit that if appellant's person was searched, then the testimony was inadmissible. We submit, however, that the proof shows that no search of appellant's person was made. The officer accused her of having a bottle of liquor on her person and perhaps commanded her to deliver it to him. She did not do so. She handed the liquor to her husband and the officers took it from him. The officers did not search her person; they did not force her to deliver the liquor to them or anyone else; they saw her pick up the bottle and deliver it to her husband. The testimony is competent and admissible as she cannot complain that the liquor was taken from her husband illegally, if in fact it was.
II. The state committed no error in not introducing the search warrant for the premises of the defendant or her husband. Counsel for defendant in the court below did not object to this testimony because the search warrant was not introduced, but he objected to any testimony with reference to the search of appellant's person.
Now he contends that the testimony was inadmissible for another and different reason. The officers testified that they had a good and valid search warrant and that they legally executed same. An objection to the testimony on the ground that no search warrant was produced would no doubt have been sustained by the court unless the state introduced same. The appellant, however, cannot now complain that the search warrant was not introduced. Heard v. State, 59 Miss. 545; Morris v. Henderson, 37 Miss. 492; Wesling v. Noonan, 31 Miss. 599; Howard v. Town of Newton, 108 Miss. 548.
In Cuevas v. Gulfport, 99 So. 503; Sanders v. State, 106 So. 822, and Brewer v. State, 107 So. 376, specific objections were made to the testimony because the search warrant was not introduced in evidence and the court held in these cases that the testimony was admissible. These cases are, therefore, not applicable to the facts here.
Argued orally by J. T. Crawley, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for the state.
Mary Burnside appeals to this court from a conviction upon the charge of unlawful possession of intoxicating liquor. The appellant urges reversal on the ground that the intoxicating liquor offered in evidence in the case was secured by an unlawful search of her person, and that, therefore, the testimony of the officers was inadmissible at the trial, and that without it no conviction could be had.
Briefly stated, the circumstances of the case are as follows:
Certain officers of Attala county procured a search warrant, and were searching the premises of Marshall Burnside, who was the husband of the appellant, Mary Burnside. While searching the premises, one of the officers saw the appellant, who had gone into the back yard, pick up a small flat bottle, and place it under her dress. He could not tell what, if anything, the bottle contained at that time. This officer followed appellant around over the premises, and demanded of her that she give him the whiskey she had under her dress; and finally appellant, after having been followed through the fence and watermelon patch, disclosed the liquor which was demanded of her, and, after a scuffle between her husband, the officers, and herself, the officers took the liquor from her.
We shall here set out the testimony of the officer, which is to be taken as true, for the purpose of passing on the legal question involved. The officer testified as follows:
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