Cutrer v. State

• Decision Date: 07 December 1931
• Docket Number: 29560
• Court: Mississippi Supreme Court
• Parties: CUTRER et al. v. STATE

138 So. 343

161 Miss. 710

CUTRER et al. v. STATE

No. 29560

Supreme Court of Mississippi

December 7, 1931

Division B

1. CRIMINAL LAW. Searches and seizures.

Evidence obtained through search by private individual of effects of accused's person held not unlawful, so as to render evidence obtained inadmissible (Constitution 1890, section 23).

2. CRIMINAL LAW.

Ruling admitting evidence obtained by search will not be reversed where evidence does not show officer searched individual's effects or leaves question doubtful.

HON. E J. SIMMONS, Judge.

APPEAL from circuit court of Pike county HON. E. J. SIMMONS, Judge.

Henry Cutrer and another were convicted of the unlawful possession of intoxicating liquor, and they appeal. Affirmed.

Affirmed.

Jas. A. Wiltshire, of Magnolia, for appellants.

It makes no difference what the motive of the night policeman might have been in going down there where the car was, but when the evidence disclosed that, in the course of the proceedings there, it developed that the officer made the search and found the liquor, this was an unlawful search and rendered the evidence inadmissible against the defendants.

King v. State, 118 So. 413.

It was reversible error for the court, in a case like this, close on the facts, and a very weak case, to refuse to give the instruction as follows: "The court instructs the jury for the defendants that their failure to take the stand in this case and testify shall not operate to their prejudice (and you as jurors should not indulge in any inference or presumption of guilt from their failure to testify).

We submit that giving the state the instruction "that you do not have to know the defendants are guilty, etc.," and the refusal of defendants' instruction on the presumption of innocence makes the error in refusing the above quoted instruction more pronounced and hurtful to the defendant.

Haynes v. State, 27 So. 601.

Eugene B. Ethridge, Assistant Attorney-General, of Jackson, for the State.

The admission of the evidence tending to show the possession of intoxicating liquor by appellants was proper and did not violate the prohibition against unreasonable searches.

Ross v. State, 140 Miss. 367.

The granting and refusal of the instructions by the court are not grounds for reversal.

In the instructions granted by the court the jury was told that the appellants were not required to do anything, but that the state must cause the jury to believe the appellants guilty beyond all reasonable doubt and to a moral certainty before a verdict of guilty would be warranted. This and other instructions fairly and sufficiently apprise the jury of the theory of presumption of innocence. This having been done, the appellant's complaint is not maintainable.

McGehee v. State, 138 Miss. 822; Frazier v. State, 141 Miss. 18; Borders v. State, 138 Miss. 788; Reeves v. State, 159 Miss. 498; Wiley v. State, 129 Miss. 196; Reynolds v. State, 136 Miss. 329; Waldrop v. State, 98 Miss. 567; Stubblefield v. State, 142 Miss. 787.

OPINION

Ethridge, P. J.

The appellants were convicted for the unlawful possession of intoxicating liquors, and from such conviction appealed here.

It appears that during November, 1930, the appellants were passing through the town of Osyka in Pike county Mississippi, about 8 or 8:30 in the evening. Their route carried them past a corner drug store in which a number of young men of the community were assembled. Evans was driving the car, and, on approaching the drug store, the car was directed to cross a railroad crossing, traveling east. In attempting to go over this crossing, the driver failed to stay upon the passageway, and ran into a bank or obstruction. Seeing the predicament the car and the driver were in, some of the...