Farmer v. State

• Decision Date: 07 May 1928
• Docket Number: 27107
• Citation: 150 Miss. 776,116 So. 884
• Court: Mississippi Supreme Court
• Parties: FARMER v. STATE. [*]

116 So. 884

150 Miss. 776

FARMER v. STATE. ^[*]

No. 27107

Supreme Court of Mississippi

May 7, 1928

Division B

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

Judgment affirmed.

A. W T. Falkner, for appellant.

The statute of Mississippi is silent as to any requirements of the use of specific words on the part of an officer in making an arrest and the action of officer Black in this case when he approached appellant and said, "All right boys" constituted a part and parcel of an illegal arrest of appellant which caused the discovery of the whisky by the officer. The officers had no warrant for the arrest or search of the appellant, and the evidence does not show that appellant was actually committing a crime in the presence of the officers at the time officer Black set in motion his acts constituting the illegal arrest of appellant. 2 R. C. L. 464; 8 L. R. A. 533 note; Yates v. People, 32 N.Y. 509.

When an officer without legal authority violates the security of a person by whatever means and in whatever manner in the placing of the person under arrest, the disclosure of the possession of intoxicating liquor on the person of the party so coerced is the result of force and coercion, and not a free and voluntary act. Burnside v. State, 144 Miss. 405, 110 So. 121. Evidence obtained by such illegal search and seizure is inadmissible. Butler v. State, 135 Miss. 885, 101 So. 193. There being no competent evidence in the case to support the one instruction given at the request of the state the said instruction should have been refused. Bullis v. State (Miss.), 7 So. 390.

Rufus Creekmore, Assistant Attorney-General, for the state.

Only one point is argued by counsel in this case, and that is that the testimony of Mr. Black was inadmissible because it was procured as a part and parcel of an illegal arrest of the appellant. This entire argument is based on the falacious assumption that the words used by the officer when speaking to the University students was the setting in motion of the arrest of appellant. The entire record shows the facts to be otherwise. Besides, under no circumstances could it be held that this was a search of the person of the defendant because there was actually no search made. If the defendant had elected to stand on his constitutional rights, then perhaps the objection made here would avail, because a search of his person could not be made until after a lawful arrest. In the case at bar, however, he did not elect to stand on his rights but instead when he saw the officer he voluntarily pulled the whisky out of his pocket and destroyed it in the presence of the officer. It becomes exceedingly difficult for me to see how this can be designated as a search.

OPINION

ETHRIDGE, P.J.

The appellant appeals from a conviction in the circuit court of Lafayette county on a charge of having liquor in possession.

The evidence discloses that on a certain night in December, 1926 the marshal of Oxford, Miss., who was also the deputy sheriff of the county, received information that the appellant was to deliver whisky to certain parties in an alley of the city of Oxford. The marshal, accompanied by a brother officer, repaired to the alley where the whisky was supposed to be delivered, and concealed himself. Shortly after the arrival of the officers, some...