Cofer v. State

• Decision Date: 05 November 1928
• Docket Number: 27146
• Citation: 152 Miss. 761,118 So. 613
• Court: Mississippi Supreme Court
• Parties: COFER v. State. [*]

118 So. 613

152 Miss. 761

COFER v. State. ^[*]

No. 27146

Supreme Court of Mississippi

November 5, 1928

Division B

1. SEARCHES AND SEIZURES. Statutes authorizing searches and seizures must be strictly construed against state.

Statutes authorizing searches and seizures must be strictly construed against the state.

2. INDICTMENT AND INFORMATION. Seizure of shotgun shells, while searching defendant's home under liquor search warrant not describing shells, held unlawful, since possession of shells was not unlawful per se; "contraband" (Hemingway's Code 1927, section 2238; Constitution 1890 section 23).

Where sheriff, searching defendant's home under search warrant authorizing him to enter and search defendant's home for intoxicating liquors "stored, kept, owned, controlled or possessed for purposes of sale," etc., issued under authority of Laws 1924 chapter 244 (Hemingway's Code 1927, section 2238), found shotgun shells in trunk and seized them, shells not having been designated in warrant as thing to be seized, seizure of shells was unlawful, and in violation of Constitution 1890 section 23, since shells were not "contraband," and possession was not unlawful per se.

3. CRIMINAL LAW. Where shotgun shells were unlawfully seized in searching defendant's home, their introduction in evidence in murder prosecution was violation of constitutional provision relating to giving evidence against, oneself (Constitution 1890, section 26).

Where shotgun shells were unlawfully seized in search of defendant's home under liquor search warrant, introduction of shells in evidence in murder prosecution was violation of Constitution 1890, section 26, since it was tantamount to compelling defendant to give evidence against himself.

HON. W. A. ALCORN, JR, Judge.

APPEAL from circuit court of Quitman county, HON. W. A. ALCORN, JR., Judge.

Ellerson Cofer was convicted of murder, and he appeals. Reversed and remanded.

Cause reversed and remanded.

Stone & Stone, and Gore & Gore and A. A. Prague, for appellant.

W. W. Frost was permitted to testify that in December, 1927, he was the sheriff of Yalobusha county, Mississippi, and that he went to the house of the appellant after the appellant was confined in Oxford jail, armed with a whisky search warrant, one in the regular form for whisky or for receptacles for whisky or stills, etc., and that on this he broke the house of Ellerson Cofer, the appellant, and went inside and broke the trunk of appellant and took out four buckshot shells from the trunk of the appellant, and further, over the objection of the appellant, he was permitted to testify that in his opinion these shells were similar to the shells found at the scene of the homicide.

We strenuously objected to all of this testimony as to the seizure of the buckshot shells and everything else connected with them, and desire to call attention to the fact that this branch of the law has been very thoroughly gone into recently in the Federal courts and in the state courts and in all the work is summarized in the case of Marron v. United States, 72 Law Ed. 45, from the state of California and decided by the supreme court of the United States, November, 1927, and deciding that the seizure of the ledger and bills in that case was not authorized by the warrant. In that case the officer had a warrant for the search of that place particularly describing the things to be searched; that is, intoxicating liquors and articles for their manufacture, similar to the warrant held by Frost in the case at bar. The holding is absolute and confirms the holdings in a long number of cases headed by Week's case, 58 Law Ed. 656, and Agnello's case and others.

This court has decided this question in appellants favor in Reynolds v. State, 136 Miss. 329.

James W. Cassedy, Jr., Assistant Attorney-General, for the state.

The most serious question in the case is the testimony of W. W. Frost, which was given over the appellant's objection in regard to the taking of the four buckshot shells from the appellant's trunk in his house, and their introduction and comparison to the shells found at the scene of the killing. It is contended by appellant that even though the sheriff had a search warrant for whisky and found whisky in the trunk, that he had no right to take the shells and that in doing so the appellant's constitutional rights have been violated.

The officers certainly had a legal right to be in the appellant's house, in view of the fact that they had a search warrant for whisky. At the same time they were also investigating and seeking evidence to determine who had killed the deceased. The buckshot shells were taken to be used in evidence in such case and not incidental to the case of possession of liquor, on account of the liquor found in the trunk in the execution of the search warrant.

In Pringle v. State, 108 Miss. 802, 67 So. 455, the appellant Pringle was confined in jail awaiting his trial for murder. While there the constable searched the appellant's clothing and found in one of his pockets a letter written by the appellant, which was afterwards introduced in evidence. The pertinency and damaging effect of this letter was very clear. It connected the appellant with the crime by showing a large amount of money in his possession with which he was attempting to bribe a witness. The murdered woman was robbed by her assassin. The letter was one of the strongest links in a chain of circumstances against the appellant. The court cited the case of State v. Turner, 82 Kan. 787, 109 P. 654, 32 L. R. A. (N. S.) 772, 136 Am. St. Rep. 129, and the notes thereto. Briefly stated, the rule is, evidence against one accused of crime is not inadmissible because it has been wrongfully obtained. See Love v. State, 142 Miss. 602, 107 So. 667. See, also, the notes in 51 A. L. R. 424, and 32 A. L. R. 680. I respectfully submit that no error was committed by the court on this question.

Argued orally by W. I. Stone, for appellant, and James W. Cassedy, Jr., for the state.

OPINION

PACK, J.

Appellant appeals from a conviction and life sentence upon an indictment charging him with the murder of John Pruitt on the night of October 20, 1927. Deceased was called from his house at night by unknown persons and asked to come out to the roadside near by, where he was shot to his death. Four empty shotgun shells were found by the body, all being twelve-gauge buckshot shells.

The theory of the state seems to have been that the assassination was due to a conspiracy, formed by appellant and others, and that on the night in question appellant drove the death car, putting the co-conspirators out at the scene of the murder, and later picking them up. Aside from incriminating statements alleged to have been made by appellant, the testimony was largely circumstantial. An important link in the chain of circumstances introduced by the state was the introduction of four loaded buckshot shells, of the same kind as the empties found near the body.

Experts in the use of firearms testified that two of the empty shells were fired by a certain pump gun and two by a certain automatic. Both guns were exhibited to the jury, shown to belong to two of the alleged coconspirators, and seen in appellant's car the day of the killing. Sheriff Frost testified that, some weeks subsequent to the homicide, he procured a search warrant authorizing him to enter and search appellant's home for intoxicating liquors, "stored, kept, owned, controlled, or possessed for purposes of sale," etc., being authorized by section 2238, Hemingway's 1927 Code (Laws 1924, chapter 244). At the time of the search appellant was in jail under conviction of another crime, and there was no one present at his home when searched. Mr. Frost broke open the house, entered, broke open a trunk, and found therein two bottles partially filled with whisky, and also found the four loaded buckshot shells in question.

Timely objection was made to the testimony in reference to the seizure of the shells and their production before the jury, on the ground that they were procured by unlawful search of appellant's home. This objection was overruled, and constitutes the principal assignment of error. That testimony procured by entrance of the home without a valid search warrant is incompetent has been settled by this court in Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377; Owens v. State, 133 Miss. 753, 98 So. 233, and many cases following them, which will be found collated under section 2242, Hemingway's 1927 Code.

In both of these cases our court followed decisions of the United States supreme court cited in Tucker's case, supra, the United States supreme court holding that testimony so procured was a violation of the Fourth Amendment of the Federal Constitution, and to admit such testimony would be a violation of the Fifth Amendment. The Fourth Amendment reads:

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."

That part of the Fifth Amendment here pertinent reads:

". . . Nor shall be compelled, in any criminal case, to be a witness against himself."

We quote section 23 of our state Constitution:

"The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized."

The applicable part of section 26 of our state Const...