Dolen v. State

• Decision Date: 11 December 1948
• Citation: 216 S.W.2d 351,187 Tenn. 663
• Parties: DOLEN v. STATE.
• Court: Tennessee Supreme Court

216 S.W.2d 351

187 Tenn. 663

DOLEN v. STATE.

Supreme Court of Tennessee.

December 11, 1948

Error to Circuit Court, Sullivan County; Shelburne Ferguson, Judge.

Paul Dolen was convicted of unlawfully possessing whiskey, and he brings error.

Judgment reversed and cause remanded.

T. R. Bandy, of Kingsport, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., for the State.

TOMLINSON Justice.

Dolen's appeal from a conviction of unlawfully possessing whiskey is mainly predicated upon his insistence that the evidence as to the whiskey found by the officers in his automobile was incompetent because the search warrant under which the evidence was obtained did not authorize a search of that automobile.The affidavit showing probable cause for the issuance of the warrant describes the place where the alleged offense is being committed as follows: 'The following described premises, viz: On the left hand side of the road leading from Edgewood Service Station on HighwayNo. 81 to Lily Manor Road being a 1 story white house being the only weather boarded house on said left hand side of said street or road located in 11th Civil District, Sullivan County Tennessee, near Kingsport.'

The search warrant issued upon the basis of this affidavit directed the officer to search the premises 'described in the affidavit attached hereto' and there is likewise inserted in this warrant a direction to search 'all outbuildings or vehicles on the premises'.

Although the affidavit did not state that whiskey was being possessed in vehicles on the premises described nevertheless, the command of the warrant that the premises described be searched did, as a matter of law, authorize a search of vehicles on those premises.Lawson v State,176 Tenn. 457, 143 S.W.2d 716.The General Sessions Judge did not, therefore, exceed his authority in expressly inserting a direction to search the vehicles on the premises, notwithstanding the fact that vehicles were not mentioned in the affidavit.

The premises described in the warrant were enclosed by a fence.On the outside of this fence there is a road which commences at the public highway and runs to the described premises and beyond at least to a point where it was 'blocked off with a fence'.It is not clear from this record whether this was a public or a private road; or if a private road, whether the right to its use was exclusive to those occupying the premises described in the warrant.Perhaps the preponderance of the evidence is that it is a private road but not exclusive in use to those occupying these premises.We state this finding of fact in order to make clear the extent of one hereinafter announced holding.An automobile was parked in this road directly in front of the house and 'right against the fence'.

The property described in the search warrant was owned by the mother of plaintiff in error.He and his mother and a brother resided there.

When the officers arrived they met plaintiff in error outside of the house and there informed him that they had a warrant to search for whiskey on these premises.Dolen then told the officers that the premises belonged to his mother and that the warrant must be read to her; and that he would go in the house and get her.As he went in he closed the door, and in the course of a little while returned with his mother.The warrant was read and the officers were admitted to the house where they found two or three empty jars 'turned down on the floor' and containing altogether about five table spoons of whiskey.They also discovered that whiskey had just been spilled 'all over the floor'.No other whiskey or evidence thereof was found in the house.

The officers then went to the automobile of plaintiff in error located as hereinabove described on the road mentioned and made a search of that car with the result that eighteen gallons of white corn whiskey was found in its trunk.Evidence of the whiskey found in the car was permitted to go to the jury over the objection of counsel for the plaintiff in error, the objection being on the ground that the automobile in which this whiskey was found 'was...