Epps v. State

• Decision Date: 23 October 1947
• Citation: 205 S.W.2d 4,185 Tenn. 226
• Parties: EPPS v. STATE.
• Court: Tennessee Supreme Court

205 S.W.2d 4

185 Tenn. 226

EPPS v. STATE.

Supreme Court of Tennessee.

October 23, 1947

Error to Circuit Court, Hamblen County; Shelbourne Ferguson, Judge.

Parley Epps was convicted of the felonious transportation of intoxicating liquors, and he brings error.

Reversed and remanded.

Franklin Park, of Jefferson City, for plaintiff in error.

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

BURNETT Justice.

Epps was convicted under an indictment charging the felonious transportation of intoxicating liquors, with the punishment fixed at not more than four years confinement in a state prison. He has seasonably appealed and says that (1) his arrest was unlawful, and (2) the search of his car was unauthorized, and that the testimony of the officers as to their discovery of the liquor was, therefore, inadmissible. The Assistant Attorney General in his reply brief very fully and fairly states the facts as follows:

'Two highway patrolmen stationed near Morristown received information that the plaintiff in error was transporting liquor from a particular section of Hamblen County to Morristown. They were personally acquainted with the plaintiff in error and also were given the number and description of his automobile. They did not, however, have definite information as to the amount of whiskey he was transporting but merely the general information that he was so transporting it.

'On the day in question they received information that he was going to this section for whiskey, and seeing his car in Morristown they followed it out highway No. 11E for a short distance to where it turned off a gravel road leading to this particular section. These patrolmen followed this car up this gravel road for a short distance approximately a mile, parked their car and waited the return of the plaintiff in error.

'In not too long a period of time he returned in this same car from the direction in which he had gone, and the patrolmen stepped out into the road and halted his car. When they halted his car, according to them, the plaintiff in error made the statement 'you have got me', one of them opened the door and saw three half gallon jars of moonshine liquor sitting on the floor of the front seat of the car. The plaintiff in error introduced no testimony whatever, but contented himself with reasonable objections as to the validity of the search.'

To the above statement of the facts we quote from the testimony of the officer as follows:

'Q. Your purpose for stopping him was to see if he had a load of liquor or not, wasn't it, that was the reason you stopped him? A. Yes, that was the main reason.'

It will at once be noticed that the officers were not informed as to the amount of liquor to be hauled. The transportation of more than a gallon of whiskey constitutes a felony under our statutes. The transportation of a less amount constitutes merely a misdemeanor. If the information the officers had had indicated the accused was hauling more than a gallon, or had it been of such a nature from which that fact might be inferred as in Thompson v. State, 185 Tenn. 73, 203 S.W.2d 361, there would be no question as to the search. Jones v. State, 161 Tenn. 370, 33 S.W.2d 59.

We have certain statutory provisions applicable to arrests by an officer in felonies and in misdemeanors. These are carried in the Code under section 11536 and provide:

'An officer may, without a warrant, arrest a person:

'(1) For a public offense committed or a breach of the peace threatened in his presence.

'(2) When the person has committed a felony, though not in his presence.

'(3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

'(4) On a charge made, upon reasonable cause, of the commission of a felony by the person arrested.'

The arrest was clearly not justified upon the charge of committing a felony. Was it justified though on the basis of a threatened breach of the peace? In Hughes v. State, 145 Tenn. 544, 571, 238 S.W. 588, 596, 20 A.L.R. 639, it was said in part:

'But an officer may lawfully arrest a person if a breach of the peace...