Lancaster v. State

• Decision Date: 08 April 1940
• Docket Number: 33954
• Citation: 188 Miss. 374,195 So. 320
• Court: Mississippi Supreme Court
• Parties: LANCASTER v. STATE

195 So. 320

188 Miss. 374

LANCASTER v. STATE

No. 33954

Supreme Court of Mississippi, Division A

April 8, 1940

APPEAL from circuit court, Lafayette county HON. T. H. MCELROY Judge.

W. S Lancaster was convicted of murder, and he appeals Reversed and remanded.

Reversed and remanded.

J. W Price, of Batesville, and J. W. T. Falkner,of Oxford, for appellant.

The Court erred in admitting the testimony of Miss Mattie Moore with reference to the taking of an axe from the well at the home of the defendant for the reason that such evidence was obtained by virtue of an unauthorized and unlawful search of the home and premises of the defendant by the sheriff of Lafayette County, acting under a void search warrant based on a void affidavit.

Hampton v. State, 132 Miss. 154, 96 So. 166; Tucker v State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377.

The court erred in admitting the testimony of the witnesses, Mrs. Davis Fuller, Mrs. Shirley Patton, Miss Juanita Faust, and Miss Reber Jackson, with reference to a conversation with the defendant regarding well at the home of the defendant.

C. A. Bratton, of Oxford, for appellee.

The appellee respectively submits that the affidavit and search warrant are valid.

Sec. 23, Code of 1930.

The appellee respectively submits that should they be in error as to the validity of the affidavit and search warrant, then notwithstanding the invalidity of the affidavit and search warrant the evidence offered by the sheriff was competent.

Pringle v. State, 108 Miss. 802; Magee v. State, 92 Miss. 865; 4 Wigmore on Evidence (2 Ed.), Sec. 2183; Wigmore on Evidence, 1934 Supplement, Sec. 2183.

Appellee respectively submits that should they be in error on both the above propositions, nevertheless the evidence is competent for the reason that the defendant disclaimed ownership of the property.

Cornelius, Search and Seizure (2 Ed.), p. 81, Sec. 28; Moy Wing Sun v. Prentiss, 234 F. 24.

Appellee respectively submits that should they be in error as to all three of the above propositions, nevertheless the evidence was admissible for the reason that permission was given by the appellant to R. C. Jones, the sheriff, to make such investigation as he desired to make of the premises, on the afternoon of the homicide, which permission and consent was never revoked.

Faulk v. State, 127 Miss. 894.

Appellee respectfully submits that the evidence of Miss Mattie Moore as to what she saw from her own house (therefore not a trespasser) is competent.

Hampton v. State, 132 Miss. 154; Sec. 23 of the Const.

W. D. Conn, Jr., Assistant Attorney-General, for the appellee.

The Court did allow a Miss Moore to testify that she was standing at her back door and saw the officers come out of the well with the axe, which they brought to her home where it was marked for future identification. We understand that the court admitted her testimony on the theory that she was a private individual (as distinguished from an officer of the law), was not a trespasser, and that, therefore, she could testify as to what she saw.

We are inclined to agree with counsel for appellant that this testimony was no more competent than was the testimony of the officers. Stated differently, if her testimony was competent, then the testimony of the officers fell in the same category. We think, however, that the court erred in holding the testimony of the officers to be incompetent. In stating our views on the subject we realize that we may be treading upon highly controversial grounds. Nevertheless, we believe that this court should hold that the evidence of the officers who went down into the well and found the axe, under all the circumstances reflected by this record, was competent.

Warren v. State, 174 Miss. 63, 164 So. 234.

Under our constitution a search warrant cannot issue except on probable cause, and it must specifically describe the place to be searched and the person or thing to be seized. If it were a matter of investigation, we can readily understood how a proper description of the place to be searched could be incorporated into a search warrant, but we are at a loss to understand how the thing to be searched for and seized could be set up and described in the warrant, because if that were known there would probably be no reason to search the premises.

Agnello v. U.S. 269 U.S. 20, 70 L.Ed. 145, 51 A. L. R. 409; Millette v. State, 67 Miss. 172, 148 So. 788.

When without any element of trespass being involved, it is reasonably apparent that an offense has been committed, particularly when involving the loss of human life, the interest of the public becomes and is paramount to any asserted private right under the Constitution (so far as the investigation of the premises where the offense was or clearly appears to have been committed). If one right must yield, it is the inferior and not the paramount one. The private right must yield to the collective right of the public or society at large to investigate or determine the character of the homicide, and if a felonious one, then to apprehend and punish him who is responsible therefore. This must necessarily be so if the power and duty of the sovereign to maintain peace and protect the security of persons and property is perpetuated. The constitution protects only against unreasonable searches and seizures.

McCamman v. Chaplain, 136 Va. 1, 116 S.E. 495; Keith v. State (Okla.), 235 P. 631; Best v. State (Okla.), 240 P. 159; People v. Marvin, 358 Ill. 426, 193 N.E. 202; 353 Ill. 64, 186 N.E. 531; People v. Milone, 195 N.Y.S. 488, 119 Misc. 22; People v. DeFore, 242 N.Y. 13, 150 N.E. 585.

We think that there should be a middle ground adopted by the court which should amply protect Constitutional rights of individuals, as well as the recognized rights of society at large. We do not think that evidence should be admissible in all cases regardless of the means by which it is secured, nor do we think that the perpetrator of a felony, particularly a major felony, should be allowed to go free and unwhipped of justice by taking refuge behind the constitutional prohibition against unreasonable searches and seizures and we here reiterate that where, without a trespass, it is evident that a felony has been committed, the asserted right of the individual, under the search and seizure clauses of our constitution, should yield to the paramount interest of society, and we submit that this court should hold that where this condition or situation be found to exist the officers of the law should be entitled to investigate and inspect the premises for the purpose of finding out how the crime was committed, what the motive was, and to search for clues and circumstances which would point to the perpetrator of such offense. The adoption of such a rule would in no wise infringe against the search and seizure provisions of our constitution when viewed in the light of the circumstances and conditions which caused the adoption of same into our fundamental law. What we have said hereinabove will in no wise conflict with the holding of this court in Cofer v. State, 158 Miss. 493, 130 So. 511.

Wigmore on Evidence (2 Ed.), Sec. 2184, and 1934 Supplement, Sec. 2184.

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