Hamilton v. State
| Citation | 149 Miss. 251,115 So. 427 |
| Decision Date | 06 February 1928 |
| Docket Number | 26936 |
| Court | United States State Supreme Court of Mississippi |
| Parties | HAMILTON et al. v. STATE. [*] |
1. INTOXICATING LIQUORS. Search of vehicle without warrant is lawful in case of probable cause or belief that liquor is being transported (Hemingway's Code 1927, section 2239).
Under Acts 1924, chapter 244, section 2 (Hemingway's Code 1927 section 2239), if there is probable cause, or if officer has reason to believe that intoxicating liquor is being transported, search of vehicle without warrant is lawful.
2. CRIMINAL LAW. Probable cause or reason to believe liquor is being transported, authorizing search without warrant constitutes judicial question (Hemingway's Code 1927 section 2239).
Probable cause or reason which officer has to believe that intoxicating liquor is being transported sufficient to authorize search without warrant under Acts 1924, chapter 244, section 2 (Hemingway's Code 1927, section 2239), constitutes question for judicial determination of trial court.
3. INTOXICATING LIQUORS. "Probable cause" authorizing search of vehicle for liquor without warrant must constitute more than mere belief on part of officer (Hemingway's Code 1927, section 2239).
"Probable cause" sufficient to authorize search of vehicle believed to be transporting liquor without a warrant, under Acts 1924, chapter 244, section 2 (Hemingway's Code 1927, section 2239), must rise higher than mere belief on part of officer making search.
4. CRIMINAL LAW. Refusal to require officer seizing liquor from vehicle without warrant to name informant held error.
In prosecution for unlawful possession of intoxicating liquor, wherein search of vehicle in which liquor was found was made without a warrant, refusal to defendant of right to have officer name informant on which he based his belief that liquor was being transported held error.
APPEAL from circuit court of Lamar county. HON. J. Q. LANGSTON, Judge.
Ed Hamilton and another were convicted of the unlawful possession of intoxicating liquor, and they appeal. Reversed and remanded.
Case reversed and remanded.
Broadus & Broadus and Haralson & Hall, for appellants.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
Appellants, Ed Hamilton and Alex Quick, were convicted of the unlawful possession of intoxicating liquor in a justice of the peace court of Lamar county, and appealed from that conviction to the circuit court.
It appears that one Tatum, the town marshal of Lumberton, accompanied by the constable of the district, arrested appellants in the town of Lumberton and searched their car in which a quantity of intoxicating liquor was found. No affidavit had been made, and no search warrant procured prior to the arrest and search.
On the trial in the circuit court, on a preliminary inquiry as to the facts connected with the search and arrest, the officer testified that, prior to the arrest and search, a party told him that a young white fellow was transporting liquor from Neicase to Hattiesburg, using for said purpose a 1926 model Ford roadster. The name of the party so transporting liquor was not known, and neither was the alleged car identified any other way except that it was a 1926 Ford model roadster. On the trial, the appellant asked the town marshal, a witness for the state, to give the name of his informant; the exact testimony on this point being as follows:
The state objected to this question, and the objection was sustained.
In the absence of a search warrant, the state proceeded upon the authority of section 2, chapter 244, Acts of 1924 (section 2239, Hemingway's 1927 Code), which authorizes search of automobiles and other vehicles therein named without a search warrant. The constitutionality of this statute was upheld by this court in Moore v. State, 138 Miss 116, 103 So. 483. If there be probable cause, or if the officer has reason to believe that intoxicating liquor is being transported, the search without warrant is lawful. The probable cause or reason upon which the officer acts is a question for judicial determination of the trial court. This probable cause must rise higher than mere belief on the part of the officer. McNutt v. State, 143 Miss. 347, 108 So. 721; Chrestman v....
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...... . . Eady. v. State, (Miss.) 153 Miss. 691, 121 So. 293, 294, was a. case where there was no affidavit or search warrant yet a. judgment of conviction was affirmed, the facts and law. applicable being set forth in the opinion thus:. . . "In. Hamilton v. State, 149 Miss. 251, 115 So. 427, it was held. that, if there is probable cause, or if the officer has. reason to believe that intoxicating liquor is being. transported, that a search of the vehicle without a warrant. is lawful. * * * It appears from the evidence in this case. that the ......
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People v. Williams
...79; People v. Lawrence, 149 Cal.App.2d 435, 450-452, 308 P.2d 821; Crosby v. State, 90 Ga.App. 63, 82 S.E.2d 38, 39-40; Hamilton v. State, 149 Miss. 251, 115 So. 427, 428; see Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 83 L.Ed. 151; United States v. Conforti, 7 Cir., 200 F.2d ......
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