Butler v. State

• Decision Date: 09 June 1924
• Docket Number: 23934
• Citation: 101 So. 193,135 Miss. 885
• Court: Mississippi Supreme Court
• Parties: BUTLER v. STATE. [*]

101 So. 193

135 Miss. 885

BUTLER v. STATE. ^[*]

No. 23934

Supreme Court of Mississippi

June 9, 1924

Suggestion of Error Overruled Aug. 28, 1924.

(En Banc.)

1 ARREST. Search without warrant of sack dropped by defendant while fleeing from arrest which policeman had no authority to make held unlawful.

Where policeman, who had no warrant for defendant's arrest, and who did not know at the time he undertook to arrest defendant and search his possessions that defendant was committing a crime in his presence, fired at defendant while defendant was running from him and caused defendant to drop sack, the policeman's search of the sack without a warrant was unlawful.

2. CRIMINAL LAW. Evidence obtained by illegal search and seizure inadmissible.

Evidence obtained by means of illegal search and seizure held inadmissible.

3. ARREST. No arrest without warrant for misdemeanor not committed in officer's presence.

An arrest cannot be made for a misdemeanor without a warrant unless the offense was committed in the officer's presence.

HON. R L. CORBAN, Judge.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Eli Butler was convicted of having possession of more than one quart of intoxicating liquor, and he appeals. Reversed and remanded.

Reversed and remanded.

Engle & Laub, for appellant.

If this court is to uphold the rule as laid down in Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, then this case must be reversed and the defendant discharged. Defendant, under the Tucker case, was entitled to the full benefit of sections 23 and 26 of the Mississippi Constitution of 1890. In the instant case, testimony shows that no crime was being committed by the appellant in the presence of the officer. He was simply walking along the street of the city, and the officer did not know that the appellant had whiskey in his possession. The officer had no warrant for the arrest of the appellant; therefore, had the officer arrested the appellant, he would have done a thing that he had no right to do. And had the officer searched the person of the appellant, he not holding a search warrant, as the testimony shows, the evidence which he would have obtained could not have been produced at the trial when objected to, as it was by the appellant.

The question resolves itself into this proposition: whether or not evidence obtained by shooting at the appellant and putting him in fear, and compelling him to drop the package, can be used upon the trial. It would be nullifying the force and effect of the very spirit, itself, of section 23 of our Constitution were the testimony obtained by this officer at the point of his pistol allowed to stand. He cannot do indirectly that which the law forbids him to do directly, that is, violate the person of the appellant without having a search warrant. If the court sustains the admissibility of evidence obtained in this way, evidence obtained by a violation of laws intended for the protection of the citizen, then it will be a warrant to all policemen to go forth and shoot at citizens at will, sneak upon them in the dark and if the citizen tries to protect himself from the danger of being accosted in the dark and takes to his heels, then the policemen may shoot at him and may kill him, as frequently happens. Are all the liberties of the citizen to be swept aside and regardless of how unlawful the police officer conducts himself, are the courts to sanction his conduct by admitting in evidence the fruits of his unlawful act? Silverthorne Lumber Company v. U.S. 251 U.S. 385, 64 L.Ed. 319; 40 S.Ct. 182.

F. S. Harmon, Assistant Attorney-General, for the state.

Appellant cannot so stretch the Tucker case as to cover himself with the immunity which it confers. There was no violation of the state Constitution. The protection therein vouchsafed is a protection of a person, the home, and the possessions. The testimony here shows that there was no search without a warrant either of Eli's person, his house or his possessions. This liquor was not taken from him. He dropped the package on a public street following the mandate of St. Paul, where he urged that we "lay aside every weight and the sin which doth so easily beset us." It is true that Eli did not follow the injunction of the great apostle "to run with patience the race that is set before us," but it is quite evident that Eli did run, and proved his ability to qualify as a marathon runner.

Who knows but that the package slipped from his arm? All that the record shows is that it dropped to the street. Eli did not take the stand and testify specifically as to why he dropped it. All that the officer saw was that Eli started running and having begun the race, "laid aside this weight." No attempt is being made here to justify the officer for shooting at Eli. If the officer went beyond his authority in so doing, Eli has a legal right of action therefor, but the fact that the officer fired three shots does not constitute either an unreasonable search or seizure. This was no search; there was no seizure, to be either reasonable or unreasonable. The officer had a legal right, in fact it was his duty, to pick up a package dropped on the street regardless of the circumstances under which it came there, and when he did pick it up and found the package to be a jar of liquor, having seen the same in the possession of Eli, though he did not take it from him or search him for it, he did have a right, a crime having been committed in his presence, namely, the unlawful possession of more than a quart of liquor, to have the man arrested and to testify as to having seen this package in his possession.

OPINION

HOLDEN, J.

This is an appeal by Eli Butler from a conviction on a charge of having in his possession more than a quart of intoxicating liquor, and imposing a penalty of two hundred and fifty dollars and sixty days in jail. Reversal is urged upon several grounds, none of which will be discussed, except the contention that the evidence introduced by the state, showing the appellant had the liquor in his possession, was inadmissible because it was obtained unlawfully by a search and seizure without a warrant for that purpose; the decision of this point will end the case.

The case is quite unusual in its facts, which we shall briefly state as follows: Eli was walking down one of the streets of Natchez about 4 o'clock in the morning, with a charcoal bag under his arm which contained, as it afterwards developed, a vessel of whisky. A policeman of the city followed Eli for some distance and commanded him to stop, whereupon Eli began to run. The policeman ordered him to stop, and fired three pistol shots at him, which caused Eli to drop his sack to the sidewalk, and he continued to increase his speed which enabled him to get away from the officer. The policeman, after running past the bag some distance, and seeing that he could not catch Eli nor make him stop returned to the sack, searched it, and took it with him to the police station, where it was opened, finding the vessel of liquor therein, and this prosecution followed.

Objection was made to this testimony in the lower court on the ground that it was secured by an unlawful...