King v. State

• Decision Date: 16 February 1925
• Docket Number: 24441
• Citation: 102 So. 840,137 Miss. 751
• Court: Mississippi Supreme Court
• Parties: KING et al. v. STATE. [*]

102 So. 840

137 Miss. 751

KING et al. v. STATE. ^[*]

No. 24441

Supreme Court of Mississippi

February 16, 1925

Division A

1. CRIMINAL LAW. Submitting to jury question whether arresting officer discovered whisky in possession of accused before or after arrest, not error.

In a prosecution for having more than one quart of whisky in possession, it is not error for the court to submit to the jury the question of whether or not the arresting officer discovered whisky in possession of the defendants before or after the arrest of the defendants.

2. CRIMINAL LAW. Submitting question whether crime was being committed in presence of arresting officers before or after arrest to jury held proper.

Where the evidence is contradictory as to whether or not the defendants had more than one quart of whisky in their possession, it is proper, where the state's witnesses contradict each other as to whether or not a crime was being committed in their presence presence before or after the arrest, to submit this issue to the jury under proper instructions.

3. CRIMINAL LAW. Accused sentenced to suffer more than legal imprisonment entitled to have case remanded for proper sentence.

Defendants convicted of having more than one quart of intoxicating liquors in their possession and fined five hundred dollars and six months in the county jail by the court below, with a suspension of a part of each of the sentences, are entitled to have their cases remanded for proper sentence, the maximum jail sentence under chapter 210 of the Laws of 1922 being ninety days in jail in addition to the money fine.

4. CRIMINAL LAW. Trial court cannot suspend jail sentence for unlawful possession of liquor.

A conviction under section 1 of the above act being had, the court below is without power under section 3 of the act to suspend any part of a proper sentence.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Red King and Poodle White were convicted of unlawful possession of liquor, and they appeal. Remanded for proper sentence otherwise affirmed.

Cause remanded for proper sentence; otherwise affirmed.

R. A Wallace, for appellants.

The first error complained of is to the action of the court in denying the appellants a severance. Section 1491, Code of 1906; section 1249, Hemingway's Code, provides: "Persons jointly indicted for misdemeanors may be tried jointly or separately, in the discretion of the court." Chapter 210, Laws of 1922, provides that any person convicted of having more than one quart of whiskey or any other intoxicating drink in their possession shall be sentenced to serve not less than thirty nor more than ninety days in jail in addition to the money fine prescribed by law. It will be seen that the punishment prescribed for the possession of more than one quart of whiskey is heavier than the punishment prescribed for the possession of one quart or less. The proof taken at the hearing of the motion for a severance shows that one quart of whiskey was taken from the appellant King and six quarts were taken from the appellant White.

The court erred in refusing to hear testimony upon the applications of the appellants for the return of the whiskey taken from them. The purpose of these applications was to suppress the evidence in the possession of H. C. Norsworthy, sheriff, A. J. McNair, a deputy sheriff, and Mr. Bradley, a constable, which had been taken by them from the appellants in violation of section 23 of the Constitution of this state. Tucker v. State, 90 So. 845.

The court erred in admitting the testimony of the witnesses McNair, Bradley and Norsworthy, over the objection of the appellants. The testimony of these witnesses is not admissible, because it was obtained in violation of sections 23 and 26 of the Constitution. Tucker v. State, 90 So. 845; Butler v. State, 93 So. 3; Taylor v. State, 93 So. 355; State v. Patterson, 95 So. 96; McCarthy v. City of Gulfport, 99 So. 501; Jordan v. State, 100 So. 384.

The court erred in permitting the state to exhibit the whiskey, to which reference is made in the record in the testimony of the witnesses, McNair, Bradley and Norsworthy, and in overruling the appellants' motion to exclude the same. The whiskey was not actually introduced in evidence, but the district attorney caused the same to be placed upon a table in front of the jury, and the witnesses handled and referred to it in the presence and hearing of the jury, during the trial, as will be seen from a reading of the testimony of the officers, McNair, Bradley and Norsworthy. The same authorities cited in support of the preceding assignment of error are relied on here.

The court erred in overruling the appellants' motion to exclude the testimony and to instruct the jury to find them not guilty. The court erred in sentencing the appellants to pay a fine of five hundred dollars and to serve a term of six months in the county jail each. At most, the court was authorized to sentence the appellants to pay a fine of five hundred dollars and to serve ninety days in jail, chapter 189, Laws 1918; Chapter 210, Laws 1922.

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

The motion for a severance was properly overruled. The trial judge has wide discretion with respect to the motion for a severance. Testimony was taken by the trial judge holding a special hearing in support of the motion. On this hearing, White admitted that the six quarts of Canadian Club found in the pasteboard carton belonged to him, and White was driving the Ford in which the liquor was being transported. However, Red King, likewise, stated on the hearing of the motion that the quart bottle and the small sample bottle of liquor in his pocket belonged to himself. And it thus appears that each of the two appellants was in possession of more than a quart of intoxicating liquor.

The disputed question of fact as to whether or not the officers discovered a crime being committed in their presence before ordering the appellants under arrest was submitted to the jury under proper instructions and the verdict of the jury should not now be disturbed. The defendants introduced no testimony whatever, but moved for a peremptory instruction and that the testimony for the state be excluded, because procured as a result of a search and seizure without a warrant.

The specific question on which this entire case turns, is whether or not the sheriff ordered these men under arrest before or after the breaking of the bottle of liquor furnished the sheriff and his companions with direct and positive evidence that a crime was being committed in their presence. The judge instructed the jury for the state, "That the sheriff or other officers has a right to arrest any person who commits an indictable offense in his presence, and that after arresting a person charged with a Violation of law an officer has a right to search such violator without a warrant."

In addition to this the judge instructed the jury elaborately in behalf of the defendants to the effect that the Constitution of Mississippi protects its citizens from illegal search and seizure. Acting under these instructions, the jury by its verdict declared that the appellants were ordered under arrest after the officers actually discovered the whiskey and knew that it was whiskey.

Surely this court cannot say, in the light of the disputed evidence in this case, that the jury was not warranted in believing the testimony of the sheriff on this point. In Hill v State, 92 So. 578, almost the same question furnished the crucial point in the case. This case was reversed and remanded, because the court took away from the jury the disputed question of fact as to whether or not the sheriff and his companions had a search warrant. On this...