Harrell v. State

• Decision Date: 14 December 1925
• Docket Number: 24985
• Citation: 140 Miss. 737,106 So. 268
• Court: Mississippi Supreme Court
• Parties: HARRELL v. STATE. [*]

106 So. 268

140 Miss. 737

HARRELL v. STATE. ^[*]

No. 24985

Supreme Court of Mississippi

December 14, 1925

Division B

CRIMINAL LAW. Evidence obtained on search of defendant's residence, on search warrants against others, inadmissible against him.

Evidence obtained by search of residence which defendant had leased and all of which was under his charge, and so constituted his home, was inadmissible against him; there having been no warrant to search his residence but only the home of others who occupied the home with him.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Yazoo county, HON. W. H. POTTER, Judge.

H. W Harrell was convicted of possession of a still, and appeals. Reversed and remanded.

Reversed and remanded.

Wise & Bridgforth, for appellant.

The appellant, H. M. Harrell, rented of one J. B. Pepper a portion of said Pepper's farm for the year 1924, also a part of said Pepper's residence. Appellant was to have all the land he could work and also all the downstairs of the house except two rooms, Pepper reserving two rooms downstairs for his own use when he made trips out to the farm, and reserving the attic also for the purpose of storing his plunder, the entrance to which was from one of these rooms. Pepper gave the appellant permission to pass through the rooms reserved on the lower floor, but gave explicit instructions that he had no rights in the attic at all.

After this contract was made, appellant contracted with one Robert Williams, his brother-in-law, to work a portion of the land he had rented, but, as between Mr. Pepper and appellant, the appellant only was Pepper's tenant. Robert Williams rented land from appellant, also one room in the portion of the house appellant rented from Mr. Pepper, and appellant boarded Williams and his father, Newton Williams. Under these conditions, the sheriff armed with the search warrant against Newton and Robert Williams appeared at the house of J. B. Pepper rented by the appellant, and in which Robert Williams and Newton Williams boarded; and in the absence of the appellant and the said Williams, sent for Robert Williams, served the warrant upon him and proceeded to search the whole house, the part rented by the appellant and that reserved by Mr. Pepper, all in the appellant's absence.

What is possession? It implies a right, however qualified, as well as mere physical control (31 Cyc. 924 and cases there cited); but it is a more or less ambiguous term. It does mean more than a power of access, which was all the appellant might be charged with here. 5 Words and Phrases, 5466; Rice v. Frayser, 24 F. 460. And the facts in this case, at the most, could amount to only constructive possession; and, if constructive, it must be conscious possession. In City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785, possession of intoxicating liquor forbidden by section 2, chapter 189, Laws of 1918, was held to be necessarily a conscious one. We here remind the court that the parts of the still, or the still itself, were found in the attic reserved by Mr. Pepper; therefore, it was not on appellant's premises or in his physical possession, when only facts and circumstances are required to show possession is not conscious. A greater quantum of evidence is required by the state.

The finding of a jug of liquor in a part of the house, a storeroom, occupied by appellant was illegally admitted; it was immaterial and incompetent and was also obtained by searching a dwelling without a warrant. But appellant testified he did not know it was there, and that he had not been in the storeroom for months. Had appellant been on trial for possessing liquor instead of a still, it would have been incumbent on him to explain the presence of the liquor on his premises; but it is not incumbent on him to explain the presence of a still in Mr. Pepper's attic, even though he rented the lower portion of the house in part.

The warrant authorized the search of the "dwelling house, outhouses and premises of, or used by, the persons of Robert and Newton Williams, located at three miles west from Vaughan, Miss." The affidavit on which this warrant issued read, "in the premises of Newton and Robert Williams." By virtue of this warrant a search was made of the whole house owned by J. B. Pepper, the lower floor of which, save two rooms, had been rented the appellant, who in turn rented one room to Robert Williams for his occupancy and that of Newton Williams. Parts of a still were found in the attic of the said house, reserved to said J. B. Pepper, none in the part rented by the appellant.

If the premises of Newton and Robert Williams only had been searched, the search would have been confined to the room rented Robert Williams; if the "premises used by Newton and Robert Williams" only had been searched, the searching of the room rented them would have been proper, but not the home of the appellant; still at the very most, the other part of the house which was rented the appellant and kept by him as a home would be the ultimate limit of possible search provided by the warrant, for no other part was used by said Williams. The invasion of Mr. Pepper's attic was illegal, and the search of it, giving the state the benefit of the extended construction of the words "used by Newton and Robert Williams," even, was without warrant. Strange v. State, 134 Miss. 31, 98 So. 340; Fatimo v. State, 34 Miss. 175, 98 So. 537. There is no evidence by which the appellant could be convicted of the crime attempted to be charged. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377; Owens v. State, 133 Miss. 753, 98 So. 235; Strange v. State, supra; Fatimo v. State, supra.

It seems that only section 2, chapter 244, Laws of 1924, has been passed upon by the courts. Moore v. State (Miss.), 103 So. 483; Horn v. State (Miss.), 104 So. 452. In these cases the court held said section 2 to be constitutional; in the latter case ETHRIDGE, J., expressly refrained from passing upon said section 3, here involved. Our contention is that irrespective of the constitutionality of said section 3, it does not apply to the facts of this case. The home of appellant could not be searched on a warrant to search that of Newton and Robert Williams, who rented one room from him and boarded with him. The attic and rooms of J. B. Pepper, the owner of the house, which were used by him intermittently, could not be searched on warrant for the search of Newton and Robert Williams' premises; and evidence obtained by such searches would not be within the terms of said section 3, and would be still governed by the law announced in Tucker v. State, supra.

The appellant's statement, "I haven't got another word to say," cannot be construed as an invitation to continue the search, and it does not waive the requirement of a valid search warrant. Morton v. State (Miss.), 101 So. 379; State v. Watson, 133 Miss. 796, 98 So. 241; Smith v. State, 133 Miss. 730, 98 So. 344. Therefore, the entire evidence against the appellant herein was illegally obtained and was inadmissible as to him, irrespective of whether it should be admitted on the trial of Robert Williams.

F. S. Harmon, assistant attorney-general, for the state.

It appears from the testimony that three quarts of liquor were found in the pantry and integral parts of a device for its manufacture were found in the attic, and that liquor ran out of the coil which was of the same general nature as the liquor in the jug; that the appellant claimed the premises were his at the time he approached the house, but at the time of the trial denied that he had any right whatever in and to the attic of this house in which the integral parts of the still were found.

This entire case, according to appellant's contention, turns...