Kennedy v. State

• Citation: 104 So. 449,139 Miss. 579
• Decision Date: 08 June 1925
• Docket Number: 24686
• Court: United States State Supreme Court of Mississippi
• Parties: KENNEDY v. STATE. [*]

104 So. 449

139 Miss. 579

KENNEDY v. STATE. ^[*]

No. 24686

Supreme Court of Mississippi

June 8, 1925

Suggestion of Error Overruled June 23, 1925.

(In Banc.)

1 ARREST. Officer may arrest without warrant person committing felony not in his presence or on reasonable grounds amounting to probable cause to believe that person has committed felony.

An officer may arrest any person without a warrant when such person has committed a felony, though not in the presence of the officer, or when a felony has been committed and the officer has reasonable grounds amounting to probable cause to believe that the person proposed to be arrested has committed a felony.

2 ARREST. Sheriff informed by credible witness of presence of still may go on premises without warrant to seize it; sheriff informed by credible witness of presence of still may go on premises without warrant to arrest person possessing it.

Where a private person goes upon the premises of another and discovers a distillery for the manufacture of intoxicating liquors and disclosed such information to the sheriff, and such person is a credible witness, the sheriff may go upon the premises without a warrant for the purpose of seizing the still and making the arrest of the person possessing it.

3 ARREST. Criminal law. Intoxicating liquors. Still seized may be offered in evidence on trial of persons orrested for possession of it.

It being a felony under the laws of this state to own a distillery, or the integral parts thereof, when an arrest is made under the circumstances mentioned in the opinion, the still may be seized and may be offered in evidence on the trial of the person arrested.

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Pike county, HON. E. J. SIMMONS, Judge.

Wesley Kennedy was convicted of unlawfully distilling intoxicating liquors, and he appeals. Affirmed.

Judgment affirmed.

R. N. & H. B. Miller, for appellant.

Was the evidence of the state of Simmons, Berryhill, & Guy admissible?--it wholly consisted of evidence obtained by search of appellant's farm and premises without a search warrant. The still was found in the woods on the farm of appellant without a search warrant. Simmons, it may be said was a private citizen. He found the still by an unlawful search of the premises of appellant, and led the officers to it. The answer to this is that, whilst the statute authorizes a private citizen to arrest for a felony committed in his presence, no law authorizes a private citizen to search without a search warrant the premises of his neighbors and then lead officers to his premises for his arrest. The whole evidence was obtained by unlawful search of appellant's premises. Simmons in this case was the agent of the officers in searching without a warrant, and the evidence was illegally obtained, and cannot be submitted in evidence.

If this case is affirmed it will abrogate section 23 of the Constitution. The statement that the people shall be secure in their persons, houses, and possessions from unreasonable search, etc., becomes a mockery and farce as held by this court in the following cases and particularly in Falkner v. State, 98 So. 691; Tucker v. State, 128 Miss. 211; Williams v. State, 129 Miss. 469; State v. Patterson, 130 Miss. 680; Williams v. State, 130 Miss. 827. "It's better to bear with a rat or two, rather than burn down the barn to catch one." This case ought to be promptly reversed and the proper judgment of his discharge entered.

F. S. Harmon, Special Assistant Attorney-General, for the state.

THE ARREST OF THIS APPELLANT BY THESE OFFICERS ENTERING UPON HIS UNFENCED, WOODED LAND WITHOUT A WARRANT WAS PROPER, SINCE SAID OFFICERS ACTED UPON PROBABLE CAUSE THAT A FELONY WAS THERE BEING COMMITTED, TO-WIT: THE POSSESSION OF A STILL, AND ANOTHER FELONY, TO-WIT: THE MANUFACTURE OF INTOXICATING LIQUOR, WAS IN FACT BEING COMMITTED AT THE MOMENT OF ARREST. The doctrine announced in Donovan Moore v. State, 138 Miss. 116, 103 So. 483 is applicable here. Be it remembered that the sheriff and his deputy came upon the land of this appellant only when informed by a credible person, to-wit: Witness Simmons, that said Simmons had actually seen contraband property, to-wit: The whiskey still, concealed on this land. The sheriff therefore, acted upon information sufficient to judicially establish probable cause and to have enabled him to have secured a warrant. In addition, a private individual who had seen a felony actually being committed, to-wit: the possession of a whiskey still, on this land accompanied the sheriff on his trip to make the arrest.

As was pointed out by the chief justice in his opinion in Donovan Moore v. State, supra, section 5, chapter 189, Laws 1918, provides that no property rights of any kind shall exist in intoxicating liquor, or appliances used in its manufacture or transportation, and that all such liquors and appliances "may be seized by the sheriff or any other lawful officer of the state and destroyed and rendered useless by him without any formal order of the court."

Surely the sheriff was here doing nothing more than this Law of 1918 made it his duty to do. The sheriff was not hunting for a still, the sheriff was merely going to a previously located spot where his informer, a credible person, Witness Simmons, had previously seen this contraband appliance hidden, and the sheriff was going there for the purpose of "rendering this appliance useless" and apprehending the person who was committing a felony by having it in possession. To do this, according to the statute of 1918, did not require "the formal order of any court."

Again, this court held in Donovan Moore v. State, that: "Section 23 of the Constitution does not prohibit all searches and seizures, nor does it in express terms require a warrant therefor. It prohibits first, unreasonable searches and seizures; and second, the issuance of warrants 'without probable cause, unsupported by oath or affirmation,' specially designating the peace to be searched and the person or thing to be seized."

It is our contention that in the light of the facts in this case the search and seizure here made was not an unreasonable search and seizure within the meaning of the Constitution. Here was open, unfenced wooded land, four miles distant from the home of this appellant. Here was Witness Simmons actually loading the officers to a spot which he had previously located, to a still which he had previously found. We insist, in the light of the facts of this case, that such a search and seizure as was here made was not unreasonable.

"The place searched" was open, unfenced woodland, remote from human habitation; the "thing seized" was an article "which it is unlawful to possess," and which by its very existence offends against the law. "The purpose for which" the seizure was made was the arrest of a felon actually in the commission of a felony at the moment. That "probable cause" was present is evident from the testimony of Witness Simmons who besought the sheriff to go with him and make the arrest after having located the contraband property.

Nor is this all. Section 1204, Hemingway's Code, section 1147, Code 1906, entitled: "Arrests: When made without a warrant" provides that "an officer or private person may arrest any person without a warrant . . . when a felony has been committed and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it . . ." The sheriff knew when he entered upon this land that a felony had been committed, since a credible person who had seen this contraband still had given him the information. As long as the still remained secreted on this land and therefore in possession, the possessor thereof was a felon subject to instant arrest. Chapter 189, Laws 1918, makes it mandatory upon the sheriff "without any formal order of any court." to seize any and every appliance for making liquor and render them useless.

THE state insists, therefore, that under the well-settled doctrine of arrest, both at common-law and under our statute just quoted, the sheriff was simply performing his sworn duty when he accompanied Simmons on this expedition and arrested this appellant at the very instant when he was committing two separate and distinct felonies, to-wit: the possession of a still and the manufacturing of intoxicating liquor. Monette v. Toney (1919), 119 Miss. 853.

It is submitted that just as under this opinion an officer may enter upon premises to make the arrest of a person charged with crime, just so such officer can enter upon premises "to arrest a thing which itself offends against the law;" a thing in which all property right has been destroyed and the possession of which constitutes a felony; a thing which chapter 189, Laws 1918, commands the officer "to make useless without the formal order of any court."

We insist, therefore, that regardless of section 3, chapter 244, Laws 1924, the search, seizure and arrest here made were not unreasonable within the evident meaning of section 23.

Argued orally by Francis Harmon, Special Assistant Attorney-General, for the state.

ETHRIDGE, J. SMITH, C. J.

OPINION

ETHRIDGE, J.

The appellant, Wesley Kennedy, was convicted of unlawfully distilling intoxicating liquors. The prosecution grew out of an arrest for distilling intoxicating liquors under the following circumstances:

One C A. Simmons, a private citizen, about four days prior to the arrest, went to the premises jointly leased by Wesley Kennedy and Jesse Kuykendall and found secreted upon the premises a distillery and some barrels of mash. Simmons returned to the place where the still was found the day before the arrest and the distillery was still at the place and the mash was...