Deaton v. State

• Decision Date: 15 December 1924
• Docket Number: 24362
• Citation: 102 So. 175,137 Miss. 164
• Court: Mississippi Supreme Court
• Parties: DEATON v. STATE. [*]

102 So. 175

137 Miss. 164

DEATON v. STATE. ^[*]

No. 24362

Supreme Court of Mississippi

December 15, 1924

Division A

1. SEARCHES AND SEIZURES. Search of outhouses under warrant for search of specified building, invalid.

Search of outhouses on premises under warrant for search or building occupied by defendant held invalid.

2. OBSTRUCTING JUSTICE. Owner may use reasonable force to resist officer attempting to search premises without valid warrant.

Owner who uses reasonable force in resisting officer who is attempting to search premises without a valid warrant, is notguilty of resisting officer attempting to execute legal writ of process, in violation of Code 1906 section 1297 (Hemingway's Code, section 1030).

HON. C P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Van Deaton was convicted of opposing or resisting an officer attempting to execute legal process, and he appeals. Judgment reversed, and appellant discharged.

Reversed.

Boggan, Leake & Boggan, for appellant.

It is not contended by the state that either of the officers mentioned had any authority to go on the lands of, and to make any search or seizure thereon, except that authorized under the search warrant. And it is admitted by the state's witness, M. A. Crawford, who searched the dwelling of appellant that he offered no resistance and that no intoxicating liquors were found in said dwelling, and that all the resistance that was offered was a result of said officers attempting to search and seize some fruit jars and jugs and their contents that were found in the garage and another house, each some distance from said dwelling, that were not mentioned in said search warrant.

Jess Wade had no authority to execute a warrant that had been issued by him. We do not think that the facts in this case sustain the indictment and we believe that the opinion of the court so holds. We think the court below was right in holding that the search warrant did not authorize the search of any house except the dwelling, and in support of this we call the court's attention to the following authorities: 24 A. L. R. 1408; Tucker v. State, 128 Miss. 211, 90 So. 845; Hill v. State (1922), 129 Miss. 445, 92 So. 578; Williams v. State (1922), 129 Miss. 469, 92 So. 584; Butler v. State (1922), 129 Miss. 778, 93 So. 3; Taylor v. State (1922), 129 Miss. 815; 93 So. 355; Miller v. State (1922), 129 Miss. 774, 93 So. 2.

We think, however, the court is wrong in the statement of the law with reference to the appellant not having the right to resist the officer under the circumstances. Our understanding of the law is that if an officer without authority of the law undertakes to unlawfully make searches or seizures, the person whose premises are being searched may resist such person with such reasonable force as may be necessary to prevent the officer from carrying out his illegal purpose. Section 1204, Hemingway's Code. We realize that the force a person is authorized to use under such circumstances should be reasonable and not excessive. Spradling v. State, 80 Miss. 82, 31 So. 534, 25 A. L. R. 537.

If there was any question from the evidence in this case as to whether the force was reasonable or not the court should have submitted this question of fact to a jury under proper instructions. 2 R. C. L. 556; 1 R. C. L. Supp. 568.

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

The specific question is raised as to what force, if any, the owner of premises may use in resisting an unauthorized search of outhouses when the officers entered and searched his dwelling lawfully. We state frankly to the court that its decisions relative to the search and seizure provisions of our constitution seem to indicate not only that evidence procured by these officers in the course of the search is incompetent, but that since the search of the outhouses was unlawful and unauthorized, appellant was justified in resisting such unlawful search by the use of reasonable force. The trial court apparently did not go into the question as to whether or not the force here exercised and the resistance here made was reasonable, but quite frankly we find nothing in the record indicating that it was not reasonable.

No decision directly in point has come to our attention. Spradly v. State, 80 Miss. 82, relied on by appellant is not a direct authority, since the trespassers here were private persons and not officers. For the convenience of the court we shall now refer to a few cases bearing on the general subject, without regard to whether they are for or against the state, in an attempt to lighten a bit of the labors of the court. People v. Ross, 126 P. 375; 25 A. L. R. 539; 49 L. R. A. (N. S.) 770.

The attention of the court is called to section 969, Hemingway's Code, which declares that the involuntary killing of a human being, while such human being is engaged in the commission of a trespass or other injury to private rights or property, or is engaged in an attempt to commit such injury, shall be manslaughter.

This appears to be the only statute bearing at all on this question, and indicated that while a person is guilty of a crime in carrying resistance to the point of taking human life, any force less than that, which seems reasonably necessary for the protection of his private rights is permissible.

OPINION

HOLDEN, J.

Van Deaton appeals from a conviction on a charge that he "did then and there knowingly and willfully oppose M. A. Crawford, a legally authorized deputy sheriff of Lee county, Miss., while the said Crawford was legally attempting to execute a search of the premises, houses and outhouses occupied by said Deaton in said county and state; said Crawford having then and there a duly and legally executed search warrant for the search of said premises," etc.

The circuit judge heard the case and decided the appellant was guilty of "opposing or resisting an officer while attempting to serve or...