Fletcher v. State

• Decision Date: 08 December 1930
• Docket Number: 28967
• Court: Mississippi Supreme Court
• Parties: FLETCHER et al. v. STATE

131 So. 251

159 Miss. 41

FLETCHER et al. v. STATE

No. 28967

Supreme Court of Mississippi

December 8, 1930

Division A

1. CRIMINAL LAW. In larceny prosecution, permitting arresting officer to testify over objection concerning confession without showing statement was freely and voluntarily made held error.

Examination of arresting officer disclosed that officer merely heard a small part of conversation while defendant was being questioned by another. He did not know under what circumstances the confession was made, and there was no showing that alleged confession was freely and voluntarily made.

2 LABOENY.

State, to sustain charge of larceny, must prove personal property was stolen.

3. CRIMINAL LAW. Arrest of defendants, charged with larceny, for trespass not committed in officer's presence, held unlawful, and therefore evidence obtained by search of automobile was inadmissible in larceny prosecution (Hemingway's Code 1927, section 1265).

Officer, without knowledge or information that defendants had possession of stolen property or that they had committed a felony of any kind, and without a warrant, arrested defendants for a trespass which was a misdemeanor not committed in officer's presence.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of George county, Hon. W. A. WHITE, Judge.

Gay Fletcher and another were convicted of grand larceny, and they appeal. Reversed and remanded.

Reversed and remanded.

Luther W. Maples, of Gulfport, for appellant.

It is true, from the state's testimony, that the officer who found the calf was not looking for any kind of evidence against the appellants; that it was mere curiosity, which to our mind takes the evidence further into the field of illegally obtained evidence than it would have been had the officer been looking for the said calf and had searched the said automobile with a search warrant or in some lawful manner, which we contend was not done, and in support of our contention we respectfully call the attention of the court to that long line of authorities that are universally supported by the leading courts of this country and by all of the better reasoned cases. These cases have been ably correlated by Judge V. A. Griffith in the case of Benard v. The State, 124 So. 479. We respectfully call the particular attention of the court to the case of Tucker v. The State, 90 So. 845; 24 A. L. R. 1377; Taylor v. State, 98 So. 459.

The universal opinion of the courts is to the effect that evidence obtained even where a legal arrest is made must be in pursuance of a particular class of evidence. The officer must know what he is looking for. He must have information and belief that the evidence sought can be found by a search of the property, neither of which is true in the case at bar.

Hemingway's Code of 1927, par. 2238, Constitution 1890, par. 23; Cofer v. State, 118 So. 613, 152 Miss. 761.

What constitutes a legal arrest is answered by the Constitution of Mississippi, section 23 and the Code of 1930, section 1227.

Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590, 1 A. L. R. 568, Nov., 1930, No. Mississippi Law Journal, pages 90-91.

When the arrest of a person is unlawful the search of the person is also, unlawful.

Henderson v. United States, 12 F.2d 528, 51 A. L. R. 420 and note; Note 32, A. L. R. 702; Allen v. State, 197 N.W. 808, 39 A. L. R. 782; Butler v. State, 101 So. 193; 1 R. C. L., Per. Sup., page 480.

Evidence discovered by search after unlawful arrest cannot be used against the accused.

Hughes v. State, 238 S.W. 588, 20 A. L. R. 639.

Broom & Gober, of Jackson, for appellants.

The theory of the defense was that the arrest was unlawful and unauthorized and therefore the search was unlawful.

A witness testified that one Gabrich questioned Tootle and Tootle confessed to stealing the calf. Gabrich himself does not so testify and Tootle denies it. On cross-examination the witness says on page 43: "I did not pay a lot of attention to it," and admits that he just overheard a part of the conversation. Now since Tootle denies making any such confession and Gabrich does not dispute it, I think it cannot be said that any confession was made and if it was made this proof was offered prior to proof of the corpus delicti; and in all events his confession would not be admissible against Fletcher and his codefendant.

The proof that the yearling was bought stands uncontroverted, and the law is that uncontroverted facts cannot be arbitrarily disregarded by a jury, but must be accepted as true.

Stewart v. Coleman & Co., 81 So. 653; New Orleans, etc. v. Harrison, 105 Miss. 18, 61 So. 655.

W. A. Shipman, Assistant Attorney-General, for the state.

The rule of law applicable to the instant case is very clearly and fully stated in the case of Bird v. State, 154 Miss. 493, 122 So. 539.

It is well settled that an officer may make an arrest for a misdemeanor committed in his presence or for a felony that has been committed where he has probable cause to believe that the person arrested has committed the felony, and as an incident of such arrest may search the person of the person arrested to see that he is not armed and to take from him instruments that might facilitate an escape; may also take from the person instruments of evidence that may tend to establish a commission of the crime for which he is arrested and things so taken from the person under such circumstances may be admitted in evidence when they tend to establish the crime with which he is charged.

Toliver v. State, 133 Miss. 789, 98 So. 342; Moore v. State, 138 Miss. 116, 103 So. 438; Brown v. State, 149 Miss. 219, 115 So. 436.

OPINION

McGowen, J.

Appellants were indicted, tried, and convicted on a charge of grand larceny--the stealing of a calf, the property of A. P. Mixon, in George county--and sentenced to serve a term of two years in the state penitentiary, and appeal here.

We shall not detail the facts, but only such as are necessary to understand the points decided.

1. The court permitted the arresting officer, Lowd, to testify as to the confession of the appellant Tootle without showing that the statement was freely and voluntarily made.

After considerable evidence had been heard as to whether or not the arrest was lawful, this occurs in the record:

"Q. Were you present when anybody questioned them? A. Gabrich questioned Tootle.

"Q. What did Tootle say about this yearling? A. Tootle owned up to it.

"Q. What did he say? A. He said they stole the calf up here."

Then follows the cross-examination and redirect-examination of the district attorney, and this is quoted literally:

"BY THE COURT: Q. What did you say that Tootle said about this calf? A. He acknowledged to taking the calf --to stealing the calf.

"Q. Just what did he say? A. I did not pay a lot of attention to it. Mr. Gabrich was questioning him, and he walked in there and I did not stay in there long.

"Q. He did not tell you who he got it from? A. No, sir. I just overheard the conversation, and I overheard that much of it."

In a recross-examination it developed that the witness did not know what was said to the defendant by Gabrich or what was said by Tootle, the defendant, before or after he heard this fragment of a conversation. Thereupon the appellants moved to exclude this statement, because the witness did not know under what condition the confession was made, nor could he give the...