Davis v. State
| Decision Date | 30 March 1936 |
| Docket Number | 32182 |
| Citation | 175 Miss. 324,166 So. 761 |
| Court | Mississippi Supreme Court |
| Parties | DAVIS v. STATE |
1. CRIMINAL LAW.
Constitution prohibiting unlawful searches and seizures is inapplicable to unlawful or unauthorized acts of trespass of private citizens as to competency of their evidence (Const. 1890, section 23).
2. CRIMINAL LAW.
Where private citizen pursued defendant who had picked up suit-case from among weeds and, after defendant had escaped, notified town marshal that defendant was thought to have had whisky evidence, that suitcase permanently abandoned by defendant in tall grass contained whisky held admissible, notwithstanding absence of search warrant (Const. 1890, section 23).
HON JOHN FALLEN, Judge.
APPEAL from circuit court of Carroll county HON. JOHN FALLEN, Judge.
Sam Davis was convicted of unlawfully possessing intoxicating liquor, and he appeals. Affirmed.
Affirmed.
J. W. Conger, of Winona, for appellant.
The evidence for the state was insufficient to hold appellant.
The witness, Gee, stated three things, namely: that he saw the defendant with a bag, and that he suspected the bag had liquor in it, and that immediately he went and told the marshal of the town, after trying on horseback to catch the defendant.
This was the only evidence as to probable cause for the issuance of a warrant, and even if a warrant could have been issued for the search of the defendant's bag, and even if one could have been served in this way, then the evidence of probable cause would not have been sufficient, and if there should be any doubt about it, the doubt must be resolved against the state and in favor of the citizen, and the lack of probable cause cannot be supplied by after-acquired evidence.
Elardo v. State, 164 Miss. 628, 145 So. 615; Grau v. United States, 53 S.Ct. 38, 77 L.Ed. --; Faulkner v. State, 134 Miss. 263, 98 So. 691; Giles v. United States, 284 F. 208; Wagner v. United States, 8 F.2d 581; Steele v. United States, 267 U.S. 498, 69 L.Ed. 757, 45 S.Ct. 414; Smith v. State, 160 Miss. 56, 133 So. 340; Lenoir v. State, 159 Miss. 697, 132 So. 325; Patton v. State, 160 Miss. 274, 135 So. 352; Walters v. State, 143 So. 847; Jones v. State, 170 Miss. 741, 155 So. 416.
Neither the state nor the common law authorizes a warrant for the search of the person. His bag is personal.
Comby v. State, 141 Miss. 561, 106 So. 827; Duckworth v. Town of Taylorsville, 142 Miss. 440, 107 So. 666; Orick v. State, 140 Miss. 184, 105 So. 465.
But he and his belongings may be searched if under arrest, but Sam Davis was not under arrest.
Burnside v. State, 144 Miss. 405, 110 So. 121; Mopp v. State, 114 So. 825; Porter v. State, 135 Miss. 774, 100 So. 377.
Evidence discovered by officer attempting to arrest without warrant inadmissible.
The case here at bar is ruled by the case of Butler v. State, 135 Miss. 885, 101 So. 193.
Hester v. United States, 44 S.Ct. 445, 68 L.Ed. 898.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
The question of "abandonment" appears to be the only question in this case. When the officer first took up the chase, he learned that the defendant had passed a certain point minus the suit case. The suitcase, then, was disposed of as a result of the unauthorized act of the private citizen and was disposed of prior to the time of the entry of the officer into the case. The constitutional prohibition against unlawful searches and seizures has no application to the unauthorized acts of private citizens.
Hampton v. State, 132 Miss. 154, 96 So. 165; Ross v. State, 140 Miss. 367, 105 So. 846.
In the case at bar, since it clearly appears that the suitcase was abandoned, pursuant to the act of the private citizen, under the case of Ross v. State, 140 Miss. 367, 105 So. 846, the testimony of the officer with reference to what he found in the hand bag was competent and admissible as against this appellant. The only issue in this case then, with this proposition settled, is whether or not this hand bag was the one which appellant was seen with when he passed the home of the private citizen. The state submits that the testimony is sufficient to show that this was, in fact, the same suitcase that appellant had when he passed that private citizen.
Appellant was convicted in the lower court of having unlawfully in his possession intoxicating liquor.
A private citizen in the town of Vaiden, Mississippi, saw the appellant, Davis, pick up from among the weeds along the street a suitcase. The appellant, becoming aware that the citizen was watching him, ran. The citizen then mounted his horse and pursued the appellant for a considerable distance. The appellant, more fleet-footed than the horse, ran toward a lot owned by a Mr. Brock, upon which there was a gin, getting out of reach of his pursuer. Thereupon the private citizen notified the marshal of the town that he thought that appellant had whisky in his possession, and the marshal got into his car and drove in the direction that appellant had gone, to arrest him. When the officer arrived at the gin lot, he learned that the appellant had passed into the lot with a suitcase, but, upon reaching the other side of the lot, came out without it. The officer never saw the appellant, Davis, nor were they in sight of each other. Several people, including the officer, instituted a search for the suitcase, and finally found it hidden in Johnson grass on the right of way of the railroad at or near the gin lot. Upon opening the suitcase, the officer found fourteen bottles of moonshine whisky therein. Same time later appellant was arrested in another county.
The officer had no search warrant,...
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