Duncan v. State
| Decision Date | 03 December 1928 |
| Docket Number | 27545 |
| Citation | 152 Miss. 209,119 So. 179 |
| Court | Mississippi Supreme Court |
| Parties | DUNCAN v. STATE. [*] |
1. INTOXICATING LIQUORS. Where offioer, unlawfully searching house, found liquor, procurement of search warrant did not legadize search.
Where officer unlawfully entered house and found liquor, subsequent procurement of search warrant, where that part of search made thereafter was but continuation of unlawful search, did not legalize unlawful search.
2. INTOXICATING LIQUORS. Where officer went to house to serve warrant for nonpayment of road tax, and knocked door down and entered, and found liquor therein, entrance was unlawful, and did not give right to seize contraband.
Where officer went to house to serve warrant on person for nonpayment of road tax, and knocked door down, and entered without a search warrant, and found liquor therein, entrance was not lawful so as to give officer right to seize contraband.
3. INTOXICATING LIQUORS. Where officer had no justification for belief that whisky was being manufactured, entrance and search without warrant was unlawful.
Where officer had no justification for belief that whisky was being manufactured, or that defendant had a still, except what he found while unlawfully in house, entrance by knocking down door and search of premises without warrant was unlawful.
4. CRIMINAL LAW. Evidence obtained by unlawful search of house held inadmissible in liquor prosecution.
Evidence obtained by unlawful search of defendant's house held inadmissible in prosecution for possessing still.
APPEAL from circuit court of Benton county., HON. T. E. PEGRAM, Judge.
Mark Duncan was convicted of possessing a still, and he appeals. Reversed, and defendant discharged.
Case reversed, and appellant discharged.
L. T. McKenzie, for appellant.
There is proof that the defendant consented to a search of his home or premises and evidence procured by an unlawful seizure or search is inadmissible--see section 23 of the Constitution of the state. State v. Patterson, 130 Miss. 680, 95 So. 96; Butler v. State, 129 Miss. 778, 93 So. 3; Williams v. State, 129 Miss. 469, 92 So. 584; Tucker v. State, 128 Miss. 211, 90 So. 845.
This search warrant was void as to the finding of this part of the still because he did not specifically designate the place to be searched merely using the word premises which this court has held time and again to be void and certainly this part of the still was not found in the house, outhouses or automobiles of the defendant which the search warrant testified. See Miller v. State, 129 Miss. 774, 93 So. 2.
We respectfully submit that all the evidence of this officer should have been excluded because not founded on a proper search warrant and affidavit, the affidavit sworn to C. I. McKenzie the deputy sheriff who made this search and arrest was in the usual form stating that he had been informed by a credible person, refused to answer the question of counsel as to who had informed him, but upon a statement from the court that he would have to give this information, he replied that up to the time of swearing out this affidavit and search warrant that no person had informed him. That proof certainly renders the affidavit and search warrant void and all evidence founded on them is clearly inadmissible as held by this honorable court in Mapp v. State, 148 Miss. 739.
Rufus Creekmore, Assistant Attorney-General, for the state.
Counsel strenuously argue that the evidence in this case was unlawfully obtained because the search warrant under which the officer was acting was illegal, and void. With reference to this point, I am frank to say, in my opinion, the issuance of a search warrant gave to the officer no additional authority to search the house and the premises of this defendant, because, if the entrance to the house was unlawful and a part of the search made was unlawful, and the evidence obtained thereunder was illegally obtained, then the subsequent issuance of a search warrant could add nothing to, nor justify the action of the officer in continuing the search. In other words, there would never have been an abandonment of the unlawful search, but merely a continuation of it after the attempted procurement of a lawful search warrant. Robinson v. State, 135 Miss. 774, 101 So. 706; Jordon v. State, 100 So. 384.
On the other hand, however, if the officer was lawfully within the house, and being there on a lawful mission, he as an incident thereto saw that the defendant possessed things which were contraband and which it was unlawful to possess, then he had the right, without the issuance of a search warrant at all to seize the contraband articles and to arrest the defendant. And, if he saw things which would cause him as a reasonable man to believe that a felony was being committed, or had recently been committed, by the defendant, then he had a right to search the house and the premises of the defendant, with a view of determining whether or not such felony was being committed, or recently had been committed. Reynolds v. State, 135 Miss. 329, 101 So. 485; Kennedy v. State, 139 Miss. 579, 104 So. 449; Love v. State, 142 Miss. 602, 107 So. 667.
In the case at bar, the officer was lawfully on the premises, his business there being to execute a warrant for the arrest of one of the tenants of Mr. Tucker. He went to the defendant's house in an effort to serve this warrant and was lawfully therein. His entrance being lawful, then those things which he saw as an incident thereto, which it was unlawful to possess, were not seen as a result of an unlawful search. When the officer saw the jug of whisky in the house, when he saw the barrel of mash in the garden, he had reason to believe that a felony was being committed by this defendant, and that he did have in his possession articles designed for the manufacture of intoxicating liquor, or, in other words, a still. This being true, he had the right to search the house and the premises of the defendant to ascertain whether or not a felony was in fact being committed by him.
Appellant was indicted and convicted of unlawfully having in his possession a still, or the integral parts thereof, and sentenced to imprisonment for three years in the state penitentiary, from which conviction and sentence he appeals.
The only testimony given for the state was that of a deputy sheriff, which was...
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