Holmes v. State
| Decision Date | 21 February 1927 |
| Docket Number | 25766 |
| Citation | 146 Miss. 351,111 So. 860 |
| Court | Mississippi Supreme Court |
| Parties | HOLMES v. STATE. [*] |
Suggestion of Error Overruled April 4, 1927.
APPEAL from circuit court of Leflore county, HON. S F. DAVIS, Judge.
T. Bell Holmes was convicted for having in his possession more than one quart of intoxicating liquor, and he appeals. Reversed and remanded for a new sentence, and otherwise affirmed.
Judgment affirmed in part, and reversed in part, and cause remanded.
Kimbrough, Tyson & Kimbrough, for appellant.
I. Chapter 210, Laws of 1922, is violative of section 61, Constitution of Mississippi. This chapter does not create a separate and distinct offense, complete in itself, and prescribe the penalty for its violation. It is absolutely necessary to refer to chapter 189, Laws of 1918, to determine the penalty since no fine whatever is prescribed in the act. It is not a complete "plan" or "scheme" or "offense," in addition to one or more already in existence. It is a modification or alteration of existing laws--an amendment. There is a vast distinction between creating a new offense and in altering or amending one already existant. See Canon v. State, 105 So. 501; Lucas v. State, 130 Miss. 8, 93 So. 437.
It is true that this court has sustained a number of convictions under the act of 1922, but after a diligent search we are unable to find any such case in which the constitutionality of this act has been assailed. See Anderson v. State, 96 So. 163; King et al. v. State, 102 So. 840; Mayor and Board of Aldermen, etc., v. State ex rel., etc., 59 So. 873; Seay v. Laurel Plumbing Co., 71 So. 9; Nations v. Lovejoy, 80 Miss. 401; Bell v. State, 79 So. 85.
Undoubtedly chapter 210, supra, has changed and altered chapter 189, Acts of 1918, and section 1275 of [146 Miss. 354] Hemingway's Code. Then if our contention is sound, it is void and chapter 189, Laws of 1918, continues in force.
II. The court erred in declining to hear appellant's motion to suppress the evidence before commencing the trial of the cause on its merits and in not having a preliminary hearing on said motion out of the hearing of the jury, and in allowing the witnesses who arrested the defendant and made the seizure of the intoxicating liquors without a warrant, to testify in the presence of the jury to the information or "probable cause," on which they acted without a warrant.
In the light of Moore v. State, 103 So. 483, we do not contend that a search warrant, or a warrant for the arrest of defendant, is always essential to valid search or arrest. We believe that this court has held that a preliminary motion is not essential to the preservation of the right of a defendant to move to exclude evidence illegally procured, but the court has not, so far as we know, held that such motion is improper. On the contrary, this court in more than one case has adopted the holdings of the supreme court of the United States with reference to a search and seizure without a warrant, and under the practice in that court the preliminary motion to suppress must be made before or at the commencement of the trial.
In determining whether or not a search warrant shall issue, the officer applied to for its issuance exercises judicial discretion as to the sufficiency of grounds and causes assigned therefor. His act in determining the sufficiency for the issuance of the warrant is a judicial act, repeatedly so held by this court and as late as Hendricks v. State, 109 So. 263.
Where the arresting officer assumes to act without a warrant the question inevitably thereafter arises as to the sufficiency of "probable cause" on which he acted. This question must be determined judicially. The court before whom the defendant or the incriminating physical or other evidence is brought, must, as a preliminary and necessary step in the trial of the cause, determine judicially as to the sufficiency of the information, or as to the "probable cause," on which the arresting officer acted.
The determination of the question of "probable cause" is a judicial one and should not be heard and determined in the presence of the jury. Iupe v. State, 105 So. 520.
W. A. Scott, Jr., Special Agent, for the state.
I. Chapter 210, Laws of 1922, is an entirely new enactment and does not amend prior laws. Previous to its adoption by the legislature there was no statute differentiating a prosecution for the possession of one quart of liquor or for the prosecution of less than one quart. This chapter carved out an entirely new offense and prescribed an entirely new penalty. Of course, if the court takes this view of the law, then it is not violative of the constitution.
II. Appellant was not prejudiced by the introduction of the testimony before the jury showing probable cause. The question of probable cause, as a general rule, is a judicial one and should be determined by the court in the absence of the jury. However, in the present case the testimony shows that the sheriff stated that he had been informed by two reliable men that liquor was secreted in a cottonhouse on the Holly Grove plantation. The sheriff did not testify as to who owned this liquor and the record shows that no such information was given him either by Mr. Cooper or Dr. Kelly. The above was practically all of the testimony on the subject of probable cause that reached the jury. We admit that if in addition to the above information these parties had told the sheriff that they believed the defendant owned the liquor, and this had been testified to by the sheriff on the stand, the cause of the defendant might have been prejudiced. But, in this case, no mention at all was made of the defendant's owning or claiming any part of the liquor. We submit on this point that the testimony was not prejudicial to the defendant's cause.
Argued orally by W. A. Scott, Special Agent, for the state.
The appellant, T. Bell Holmes, was indicted by the grand jury of Leflore county, on a charge of unlawfully having in his possession and under his control more than one quart of intoxicating liquor. He was tried and convicted of this offense, and sentenced to pay a fine of two hundred fifty dollars and to serve a term of ninety days in jail, from which conviction he has appealed to this court.
The sheriff and his deputy testified, in substance, that they received information from Mr. Cooper, the manager of the Holly Grove plantation, and from Dr. Kelly, that whisky was stored in a cotton house located on the side of the public road on the Holly Grove plantation, and if they would be diligent they could find the parties who owned the liquor; that they went to the place and secreted themselves in another cotton house on the opposite side of the public road, which was about seventy-five feet away from the one in which the intoxicating liquor was stored; that, after waiting about two hours, the appellant and another party drove up in an automobile and stopped in the road in front of the cotton house; that these parties went into the cotton house and brought three five-gallon cans out to the car; that the appellant placed one of these cans in the car, and was in the act of putting the other two cans into the car when they closed in on them and arrested the appellant and his partner, searched the car, and secured the can of whisky therefrom, as well as the two cans sitting by the car. The deputy sheriff testified that, when he first went to the place, he looked into the cotton house and saw the cans therein, but both officers testified that they had no actual knowledge of the contents of the cans until they opened them after the appellant had been arrested.
At the trial of the cause, after both sides had announced ready for trial and before any testimony had been offered, the appellant filed a motion to suppress the evidence and quash the indictment against him on the ground that the state proposed to introduce against him, at the trial of the cause certain intoxicating liquors taken from him by means of an unlawful arrest and search and seizure, in violation of his rights under section 23 of the Constitution of 1890, that he was neither guilty of a felony nor a misdemeanor committed in the presence of the officers arresting him, and that all the evidence obtained by said officers by reason of the said illegal arrest and search and seizure was highly prejudicial to his rights and...
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