Johnson v. State
| Decision Date | 04 October 1937 |
| Docket Number | 32718 |
| Citation | 179 Miss. 446,176 So. 164 |
| Court | Mississippi Supreme Court |
| Parties | JOHNSON v. STATE |
Evidence that officers made no demand upon accused but were merely following him when without any compulsion or promise accused stated that he had liquor in sack which he was carrying was sufficient evidence of commission of a crime in the presence of the officers to warrant accused's arrest and seizing of the contraband liquor without a search warrant.
APPEAL from the circuit court of Neshoba county HON. D. M. ANDERSON Judge.
Hooper Johnson was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed.
Affirmed.
W. T. Weir, of Philadelphia, for appellant.
By a careful reading of the record it will be shown that the defendant knowing the men as being officers started to throw the sack down, and he was told by the officer not to do so, and that the officer after asking him what was in the sack he answered whiskey and that they were continuing to walk on up to him and took the sack from him.
We most respectfully submit that the case of Butler v. State, 135 Miss. 885, 101 So. 193, is very much in point here.
Orick v. State, 140 Miss. 184, 105 So. 465; Canterberry v. State, 145 Miss. 462, 107 So. 672; Webb v. Town of Sardis, Webb v. State, 143 Miss. 92, 108 So. 442; Seller v. Lofton, 116 So. 104.
It is contended that the search was in this case by the permission of the defendant. How could it be so when the officers were following him and the search had already begun and was illegal.
Fulton v. City of Philadelphia, 148 So. 346; Burnside v. State, 144 Miss. 405, 110 So. 121.
It is also contended judging from the record that the confession of the defendant would justify the conviction. We respectfully submit that his confession should not have been admitted on the authority of the case of State v. Patterson, 95 So. 96.
Morton v. State, 136 Miss. 284, 101 So. 379.
The corpus delicti cannot be proven alone by a confession but must be proven aliunde the confession.
Butler v. State, 93 So. 3; Miller v. State, 93 So. 2.
We respectfully submit that the search of the person is not authorized as claimed to have been made in this case.
Comby v. State, 141 Miss. 561, 106 So. 827; Duckworth v. Taylorsville, 142 Miss. 440, 107 So. 666; Robinson v. State, 143 Miss. 247, 108 So. 903.
In this case the officers obtained information from the sheriff that there were some whiskey violations down there, claiming it to have had the information from the sheriff. The sheriff says that he had no information as to any one in particular. So this case in this instance falls within the rule announced in the case of Elardo v. State, 145 So. 615.
W. D. Conn, Jr., Assistant Attorney-General, for the State.
We submit that the Butler case, 93 So. 3, is not in point here. In the Butler case the officer undertook to arrest the accused in order to examine the contents of a sack which he had on his shoulder. Butler ran. The officer pursued and finally shot his pistol at him. Butler dropped his sack and the officer picked it up, examined it and found it to contain whiskey. The facts of the Butler case are not identical with the facts of the case at bar. Here, the officers walked behind appellant, as they had a legal right to do. The record does not reveal that they were trespassers in any sense of the word and the eye does not commit a trespass if the owner of that eye is in a place he has a right to be. When appellant discovered the officers, he undertook, apparently, to rid himself of the whiskey. Without undertaking to arrest appellant, one of the officers observed his movements and told him not to throw the sack down and asked what he had in the sack. The appellant replied that he had whiskey. Thereupon, the officer arrested him and a subsequent search (which we insist was incident to a valid arrest and hence a valid search) revealed three additional pints concealed on his person.
The State submits that when the arrest was made the officers were in possession of enough facts to show that the defendant was unlawfully possessing intoxicating liquor and such being the case, he could be arrested without a warrant. If it be held that this was a valid arrest, then the subsequent search at the jail as an incident to such valid arrest, was proper and the State submits further that the court correctly held the evidence competent and admissible and this court should now affirm such trial court's judgment.
Hooper Johnson, appellant, was tried in a justice of the peace court of Neshoba county on an affidavit charging him with the unlawful possession of intoxicating liquor and was there convicted; appealed to the circuit court, where he was tried de novo, was again convicted and sentenced to pay a fine of $...
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