King v. State
| Decision Date | 16 May 1927 |
| Docket Number | 26568 |
| Citation | 147 Miss. 31,113 So. 173 |
| Court | Mississippi Supreme Court |
| Parties | KING v. STATE. [*] |
Appeal from circuit court of Rankin county, HON. G E. WILSON, Judge.
Albert King was convicted of the possession of a still and the integral parts thereof, and he appeals. Reversed and remanded.
Judgment reversed and case remanded.
W. E. McIntyre, for appellant.
The state cannot rely both upon a search warrant and credible information. To do so would destroy the very purpose of the law. In this case the information obtained by these witnesses came to them the day before the search was actually made. At that time a justice of the peace illegally qualified to act and a mayor likewise qualified to act lived within one quarter of a mile to the witness Murray. He says he made no effort to obtain a search warrant. He had certainly had the time.
Witness Purvis says that he did obtain a search warrant before going to make the search. The witness states that he does not know what became of the search warrant. "The identical search warrant must be introduced or its loss accounted for." Stingily v. State (Miss.), 108 So. 917. See, also Wilson v. State, 102 So. 166; Cuevas v. City of Gulfport, 99 So. 503.
The testimony could not be admitted under the theory of information conveyed by a credible person, because when these witnesses went upon the premises they did not find the defendant in an act of committing a crime, but he was found at his house. The search was made before any arrest was made. The testimony was inadmissible. Tucker v. State, 90 So. 845; Owens v. State, 98 So. 233.
The possession of the "still" was not proved. Moody v. State, 104 So. 143.
Rufus Creekmore, Special Assistant Attorney-General, for the state.
Counsel insists that in this case the loss or destruction of the search warrant was not accounted for and, therefore, that the state was not permitted to use these parties as witnesses in its behalf. The state, however, in this case did not have to rely upon the search warrant because the testimony of the officers shows conclusively that they had information from a credible source, which they believed, that the defendant was in the act of committing a felony, or was about to do so. This being true, the officers did not need a search warrant. Ingram v. State, 111 So. 362.
W. E. McIntyre, in reply, for appellant.
In the Ingram case, 111 So. 362, relied upon by the state, the proof "showed that the search warrant and the affidavit had been lost." There is no such proof in this case. In the Ingram case the officers concealed themselves and while the appellant, Ingram, was engaged in the act of committing a felony "the deputy sheriff stepped out and undertook to arrest them, but they fled and so avoided arrest."
In the instant case the search was made by Officer Murray and a citizen, Thorn, while the appellant was sick in his home. In fact, the only connection in the world the state attempts to make of the appellant with this still is the statement attributed to him by the two officer witnesses. This statement was inadmissible under the Nicaise case, 106 So. 817.
The testimony does not show that the appellant was ever placed under arrest until after his indictment by a grand jury. Nelson v. State, 102 So. 166, sustains our contentions throughout.
Appellant, Albert King, was indicted for the possession of a distillery, commonly called a "still," and the integral parts thereof, and was placed upon trial and convicted.
It appears that the evidence against the appellant was obtained by a search of his premises. On the offering of this evidence it was objected to, unless and until the affidavit and search warrant were introduced in evidence, which was not done; but the district attorney stated that he expected to rely upon information as to the commission of a felony, which information amounted to probable cause, and the going to the premises of the appellant for the purpose of arresting him on such information.
It appeared from the evidence that a deputy sheriff and a constable living at Pelahatchie, in Rankin county, had secured some kind of information that there was a still being operated near the defendant's residence, and went to a justice of the peace, and secured a search warrant to search the premises. The affidavit and warrant were not offered on the trial, nor was their loss or destruction proven. It appears that no warrant was obtained for the arrest of the defendant; in fact, the record does not show that he was arrested on this occasion. The deputy sheriff and the constable and another person went to the place occupied by the appellant, and one of the officers remained at the house while the other officer and the private citizen acting with them went down to a pond located near the house of the appellant. While searching around the pond the officer and the private citizen found a distillery, one of the improvised kind with pipes and barrels, and beer, near the pond. It further appears that another man was living on the opposite side of this pond, only a short distance from where the still was located, and also that a third party lived east of the pond a short distance, and that both of these men had previously been convicted of the crime of unlawfully distilling, or of possessing a still, and that the information upon which the officers were attempting to make the search was furnished by one of these parties.
The evidence with reference to the information furnished the...
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...a warrant is a judicial question and is to be determined by the court in the absence of the jury. Mapp v. State, 114 So. 825; King v. State, 113 So. 173. learned trial court committed reversible error in admitting testimony as to the statements made by Mrs. Millette when she was arrested ov......
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