Iupe v. State

• Citation: 105 So. 520,140 Miss. 279
• Decision Date: 19 October 1925
• Docket Number: 24762
• Court: United States State Supreme Court of Mississippi
• Parties: IUPE v. STATE. [*]

105 So. 520

140 Miss. 279

IUPE v. STATE. ^[*]

No. 24762

Supreme Court of Mississippi

October 19, 1925

Division B

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

Samuel Iupe was convicted of unlawfully possessing intoxicating liquors, and he appeals. Reversed and remanded.

Judgment reversed and case remanded.

W. T Horton and L. M. Burch, for appellant.

The only time in the evidence, fixed for the commitment of the crime was "one Saturday night," which might have been ten years ago or the past Saturday night, nor was the offense proved to be committed after the passage of the act alleged to have been violated. This court has held "in order to sustain a conviction of crime, the state must prove that the offence was committed within the statutory period of limitation, and in order to permit the imposition of a penalty prescribed by a particular statute, it must prove that the offense was committed after the passage of the statute," McLaughlin v. State, 98 So. 148, and the authorities cited therein, therefore, we respectfully submit that the verdict of the jury was contrary to the law and evidence, and that this case should be reversed and remanded.

At the time the appellant was arrested, he had committed no crime nor did the officer have a warrant for his arrest, nor a search warrant for the premises. The officer testified that he went in to arrest the appellant and it was then that he grabbed up a jug and ran into the back yard. It was not until the officer had invaded the home of the appellant that he found any whiskey. So we respectfully submit that in the first place the arrest was illegal under section 1204, Hemingway's Code, as the appellant had committed no crime, and that the evidence was secured in an illegal manner; hence, the court erred in admitting the evidence.

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

The only reference in this record relating to the time of the alleged offense, is the statement by, the sole witness in the case, Police Officer J. D. Dixon, to the effect that "we sent a negro in there one Saturday night to buy two bottles of jake, and he bought the jake and a coca cola and brought it out to us."

In the light of McLaughlin v. State, 98 So. 148, where a case was reversed where the testimony in the record was to the effect that "During the Neshoba County Fair, in the month of August, the appellant was found in possession of liquor," we submit this case without argument.

OPINION

ETHRIDGE, J.

Appellant was convicted of having unlawfully in his possession vinous, spirituous, alcoholic, and intoxicating liquors, and was convicted, fined, and sentenced to imprisonment in the county jail for a term of sixty days, and appeals.

The state, to make out its case, introduced a policeman of the city, who testified over objection that he sent a darkey into a store of the appellant to see if he could buy intoxicating liquors, and such person returned and reported that he had bought some Jamaica ginger; that he gave such person marked money with which to make the purchase; that on receiving such report he went to the store of the appellant for the purpose of making arrest without having procured a warrant for such arrest, and without having made an affidavit charging appellant with any crime; that when he entered the store the appellant went into the back part of the building which he occupied as a living room, and on out at the back door; that he followed him into said room and threw his searchlight upon him, he being then in the yard back of the house, and by means of the searchlight he saw the appellant hiding a jug in the weeds; that he did not know that appellant had the jug until he threw such searchlight upon him, and he could not have discovered the possession thereof without having gone into the store and room; that he arrested appellant and seized the jug, and found that it contained intoxicating liquors, to-wit, a gallon of whiskey; that all this occurred in the city of Jackson in the first district of Hinds county. This was the only testimony introduced, and was objected to because obtained in violation of section 23 of the Constitution. This arrest and search were made after the enactment of chapter 244, Laws of 1924, section 3 of which act authorizes the receipt in evidence of evidence obtained by officers as a result of either a search or an arrest without a warrant. The court below acted upon section 3 of said chapter 244, Laws of 1924, in admitting the evidence.

In the cases of Rich Gardner v. State (No. 24879), 105 So. 475, and Hose Orick and Clovis Clingan v. State (No. 24841), 105 So. 465, decided October 5, 1925, we held that section 3, chapter 244, Laws of 1924, was unconstitutional, and that the rule was announced in Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and Owens v. State, 133 Miss. 753, 98 So. 233, and other cases referred to in the opinions delivered October 5, 1925, that such evidence obtained in violation of section 23 of the Constitution would not be received against a defendant on a trial for crime growing out of the transactions in which such seizure or unlawful arrest was made. The authorities have been fully collected in previous decisions both for and against the rule which we adopted in these cases. It will be unnecessary to rediscuss those authorities.

However, as there is a tendency to encroach upon the constitutional provisions manifested of late years, and apparently a growing disposition to sweep aside these provisions, it may be well to refer to some historical data pertaining to the subject of liberty and the necessity for its security against official power.

Mr. Hallam, in his Constitutional History of England, in the beginning of his work, on page 2, in discussing the encroachments made upon English constitutional rights, beginning with Henry VII, said:

"This liberty has been the slow fruit of ages, still waiting a happier season for its perfect ripeness, but already giving proof of the vigor and industry which had been employed in its culture. I have endeavored, in a work of which this may in a certain degree be reckoned a continuation, to trace the leading events and causes of its progress. It will be sufficient in this place briefly to point out the principal circumstances in the policy of England at the accession of Henry VII.

"The essential checks upon the royal authority were five in number: (1) The king could levy no sort of a new tax upon his people, except by the grant of his parliament, consisting as well of bishops and mitred abbots or lords spiritual, and of hereditary peers or temporal lords, who sat and voted promiscuously in the same chambers, as of representatives from the freeholders of each county, and from the burgesses of many towns and less considerable places, forming the lower or commons' house. (2) The previous assent and authority of the same assembly were necessary for every new law, whether of a general or temporary nature. (3) No man could be committed to prison but by a legal warrant specifying his offense; and, by usage nearly tantamount to constitutional right, he must be speedily brought to trial by means of regular sessions of gaol delivery. (4) The fact of guilt or innocence on a criminal charge was determined in a public court, and in the county where the offense was alleged to have occurred, by a jury of twelve men, from whose unanimous verdict no appeal could be made. Civil rights, so far as they depended on questions of fact, were subject to the same decision. (5) The officers and servants of the crown, violating the personal liberty or other right of the subject, might be sued in an action for damages to be assessed by a jury, or, in some cases, were liable to criminal process; nor could they plead warrant or command in their justification, not even the direct order of the king."

The author then enters upon a narration of the events and the methods by which the king undertook to break down these constitutional rights and establish a complete supremacy of kingly rule and royal prerogative. This struggle occupies much space, but has been summarized in the "Genesis and Birth of the Federal Constitution," by Chandler, at pages 120 et seq. After setting forth the quotation above set out from Hallam, it is said:

"Those constitutional rights had more than once been violated by the...