Falkner v. State

Decision Date28 January 1924
Docket Number23233
Citation134 Miss. 253,98 So. 691
CourtMississippi Supreme Court
PartiesFALKNER et al. v. STATE

Syllabus by the Court.

Const 1890, § 23, providing " The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized," extends to all of the property and possessions of a citizen, and no part of his property can be invaded and searched without a search warrant specially designating the place to be searched, and the evidence obtained by means of an unlawful search is not admissible against the owner in a criminal prosecution against him.

En Banc.

Appeal from Circuit Court, Leake County; G. E. Wilson, Judge.

APPEAL from circuit court of Leake county, HON. G. E. WILSON, Judge.

Tom Falkner and Pete Falkner were convicted of an attempt to unlawfully manufacture intoxicating liquor, and they appeal. Reversed as to Tom Falkner and affirmed as to Pete Falkner.

Judgment reversed as to Tom Falkner, and cause remanded, and affirmed as to Pete Falkner.

James T. Crawley, for appellants.

Evidence acquired in an illegal search by officers of the law, without a search warrant, as in the instant case, is inadmissible and cannot be offered against the defendants. Tucker v. State, 90 So. 845; Williams v. State, 92 So. 584; Miller et al. v. State, 93 So. 2; Butler v. State, 93 So. 3; Taylor v. State, 93 So. 355.

In the instructions the jury should have been told by the state that before they could convict the defendants of a felony, the jury must believe beyond every reasonable doubt that the defendants did unlawfully and feloniously do that thing for which the state sought a conviction. 16 Corpus Juris, 968, sec. 2362

In a felony case the defendant has a right to have the law distinctly declared to the jury in the instructions. Staten v. State, 30 Miss. 619; 1 Morris's State Cases, 834; Cothran v. State, 39 Miss. 541, 2 Morris's State Cases, 1382; 3 Wharton's Criminal Procedure (10 Ed.), 2075, section 1644.

Considering the authorities as they are offered above, we respectfully maintain that the words "feloniously" and "unlawfully" were necessary in each of said instructions given the state.

S. C. Broom, Assistant Attorney-General, for the state.

The appellants contend that Instruction No. 1 is erroneous, because it leaves out the words "unlawfully" and "feloniously." A complete answer to this, in this particular case, is that you cannot manufacture intoxicating liquor in the state of Mississippi without committing a felony. It is a felony, made so by statute. It cannot be manufactured at any time, in any way, or under any circumstances, without being a felony. It is unlike murder, or most all other felonies. Not every homicide is murder; not every homicide is a felony. The killing might be excusable or justifiable. Not so with the manufacture of whisky. It is always a felony.

The law of search and seizure is not involved in this case. No search or seizure was made. The sheriff and his deputy received information that there was a still and some beer or some mash over in Beat Four in Leake county, out in the woods at a point three hundred yards away from the home of the appellants herein. They did not know on whose land this still was located; they did not know who had placed it there, and they could not procure a search warrant particularly describing the place and the man to be searched, when, as a matter of fact, they did not know the particular description of the land nor the owner of it, nor did they know the man or men who had placed the apparatus there for distilling whisky. In other words, the officers in this case were engaged in the necessary preliminary work that would have enabled them to go before a justice of the peace and swear out a search warrant that would enable them to go there and seize the still.

Argued orally by Jas. T. Crawley, for appellants, and S. C. Broom, assistant attorney-general, for the state.

ETHRIDGE, J. COOK and HOLDEN, JJ., dissent as to reversal and concur in affirmance. SMITH, C. J., specially concurring.



The appellants were convicted of an attempt to manufacture intoxicating liquor, and sentenced to one year each in the State Penitentiary, from which conviction they appeal, and assign several things as error; one of the assignments being that the court erred in admitting in evidence the testimony of the sheriff and constable as to the finding of a still and mash upon the premises of the appellant Tom Falkner as the result of a search without a search warrant. The evidence shows that the still was in the wooded land of Tom Falkner.

It was held in Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and in subsequent cases, that evidence procured without a search warrant was not admissible in evidence; but the other cases involved searches of residences and buildings or rooms under section 2088, Hemingway's Code (section 1749, Code of 1906), whereas in the present case the still and mash were found upon the premises of the appellant Tom Falkner about three hundred yards from his residence in the woods. The appellant Pete Falkner lived somewhere on the premises of Tom Falkner, but the record does not disclose exactly where or in what capacity he lived there, or what his rights of possession were.

The attorney-general in his brief says:

"The sheriff and his deputy located the place and found there four barrels of beer and a still with furnace and trough near a spring, and all things necessary for the manufacture of liquor. This was found in a wooded district. The sheriff did not know who owned the land nor who claimed it. They did not know who had placed the beer there or who owned the still. They therefore concealed themselves and determined to keep watch until such time as the guilty parties would come to operate the still. On one occasion, after having kept an all-night vigil, they saw the defendants come there and stir the beer and busy themselves round about the place, whereupon the sheriff and his deputy attempted to draw nearer to the place in order that they might get a better view, or perhaps hear some conversation between the parties, but, unfortunately, they were discovered, and the appellants ran away. . . . The still and mash have not been introduced in evidence, nothing has been seized, the privacy of no home has been disturbed, no doors have been broken, no arrests have been made. The sheriff and his deputy have simply testified that they discovered four barrels of beer or mash and a still for distilling the same into intoxicating liquor in the woods at a point three hundred yards from the home of the defendants."

The testimony upon which the appellants were convicted was that of the sheriff and his deputy obtained by them when searching the premises of the appellant Tom Falkner without a warrant. Does the prohibition of section 23 of the Constitution, as construed in the Tucker Case, supra, apply to a place where no buildings are situated? Section 23 reads as follows:

"The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized."

The security of the section is of the persons, houses, and possessions. If the section meant only to protect the persons and houses the words "and possessions" would be superfluous and meaningless. The rule is clear that in construing Constitutions every word is to be given some meaning. The words "and possessions" indicate clearly something other than houses and persons. The term "possessions" is a very comprehensive term, and includes practically everything which may be owned, and over which a person may exercise control. Webster, in his Unabridged Dictionary, defines the word "possession" as follows.

"In law, Act, fact or condition of a person having such control of property that he may legally enjoy it to the exclusion of others having no better right than himself. The thing possessed; that which any one occupies, owns or controls; property in the aggregate, wealth, dominion."

Black, in his Law Dictionary, defines "possession" as follows:

"The detention and control, or the manual or ideal custody, of anything which may be the subject of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place and name. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons."

In 6 Words and Phrases, First Series, p. 5464, "possession" is defined as follows:

"Possession is a detention or enjoyment of a thing which a man holds or exercises by himself or by another, who keeps or exercises it in his name"--citing authorities.

"The possession which is necessary as an element in the acquisition of title by prescription must have three qualities; it must be long, continual, and peaceable"--citing authorities.

"Possession is denoted by the exercise of acts of dominion over the property, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state; such acts to be so repeated as to show that they are done in the character of owner, and not as an occasional trespasser."

"Possession is that condition of fact under which one can exercise his power over a corporeal thing to the exclusion of all others."

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