Martin v. State
| Decision Date | 11 May 1953 |
| Docket Number | No. 38717,38717 |
| Citation | 217 Miss. 506,64 So.2d 629 |
| Parties | MARTIN v. STATE. |
| Court | Mississippi Supreme Court |
Wingo & Finch, Hattiesburg, for appellant.
J. P. Coleman, Atty. Gen. by Joe T. Patterson, Asst. Atty. Gen., for appellee.
The appellant, G. W. Martin, was convicted of the murder of Jessie Cooper and the jury being unable to agree upon the punishment, he was sentenced by the court to a life term in the penitentiary.
On Saturday afternoon, July 19, 1952, Leon Z. Middlebrook, Jr., and the deceased, Jessie Cooper, were travelling over Highway No. 11 in Jasper County when they noticed a peach orchard and stopped to get some peaches around 6:00 or 6:30 in the afternoon. Middlebrook, the driver of the automobile, parked the car on the right hand side of the highway and Cooper got out of the car and went into the orchard. As he started picking some peaches, a rifle started firing and Cooper immediately started running for the car. The rifle continued to fire, firing approximately ten times, and as Cooper got within six feet of the car he hollered and upon reaching the car told Middlebrook he was shot. He got into the car and Middlebrook proceeded to Pachuta in an attempt to get him to a doctor. Upon his arrival there, a doctor was summoned, who found that Cooper was dead. Upon examination, it was found that he had been shot in the back under the left shoulder blade.
Sheriff J. E. Pittman of Jasper County was notified of the shooting of deceased around eight o'clock that night. He immediately proceeded to investivate the killing, going to the home of appellant, G. W. Martin, who owned the peach orchard, where he arrested him, took his rifle and a number of cartridges and placed him in the Jasper County Jail at Bay Springs. The next morning he returned to the appellant's home, carrying with him the two Negro boys who were working for the appellant picking peaches and who were present at the time of the shooting. These boys pointed out to the sheriff where the appellant was standing on the premises at the time he was shooting, and the sheriff asked the boys to hand him the empty shells. Cleo Trotter picked up five empty shells and handed them to him. These empty shells, the bullet which was removed from the body of deceased, the rifle and the cartridges were later turned over to the Federal Bureau of Investition, and it was shown that the bullet which was removed from the body of Cooper was fired from the rifle used by the appellant. Cleo Trotter, a 14 year old Negro boy who was working for appellant, testified for the state that on the day of the shooting, the appellant, appellant's wife, the other Negro boy and he were returning from the barn on appellant's farm, and as they crossed the highway going to the home, they saw a car parked on the highway by the peach orchard. This witness testified that the appellant remarked 'Yonder a car is.' The appellant went in the house, came out with his rifle, and started shooting in the direction of the parked car. This witness testified that he saw a boy running towards the car.
The appellant testified in his own behalf and admitted that the rifle belonged to him and that he had fired the gun on the evening the deceased was killed. He testified further that he did not see the car or the deceased; that he was shooting at birds in the orchard and did not know that deceased had been killed until later that evening.
The appellant assigns as error that the court erred in admitting, over the objection of the appellant, the testimony of the sheriff relating to the five empty shells found upon the premises of the appellant and their introduction in evidence on the grounds that the sheriff was unlawfully on the premises because he did not have a search warrant. We are of the opinion that this assignment is well taken. The sheriff admits that he did not have a search warrant, but contends that he did not go back to the appellant's home or premises for the purpose of making a search, but only for the purpose of making further observation and investigation of the homicide. The sheriff had no authority to go upon the premises of appellant while he was in jail without a search warrant. The state attempts to justify his action on the ground that it was an incident to the lawful arrest which was made the night before. Further, that the five empty shells were picked up and given to the sheriff by the Negro boy, Trotter, and for this reason the search and seizure provision of our constitution, Sec. 23, is not applicable as it does not apply to private persons. It is also argued that the sheriff was authorized by one Blackledge, brother-in-law of appellant who was in charge of the premises, to make such further investigation as he desired to make.
In Lancaster v. State, 188 Miss. 374, 375, 195 So. 320, 321, Lancaster was charged with the murder of his wife, arrested and put in jail, and on the nextt day the sheriff, with a void search warrant, went to the premises of Lancaster looking for the death instrument. His search resulted in the finding of an axe in a well on the place. The trial court sustained objection of appellant to the sheriff testifying, but permitted over objection an individual who stood on her premises and witnessed the search made by the sheriff and the axe drawn out of the well to testify to such facts. The state, in that case, contended that the search by the sheriff with a void search warrant was legal as an incident to the arrest of the appellant. The state also contended that the search was valid because the appellant gave his consent thereto. In that case, the Court said:
'It is argued that the search by the sheriff without warrant was legal because it was merely incidental to a valid arrest by him of appellant. * * * Here, one day there was an arrest on the premises and appellant lodged in jail, and on the next day, the search was made. It was not incident to the arrest. The sheriff had no control at that time over the premises as an incident to the arrest.
'It is argued further that the search was valid because appellant gave his consent thereto. There was no attempt to show that appellant gave his consent to the search made on the day after the homicide, during which the axe was found in the well. The record shows...
To continue reading
Request your trial
-
Walker v. State, 92-DP-00568-SCT
...evidentiary purpose." Voyles v. State, 362 So.2d 1236, 1241 (Miss.1978); Irving v. State, 228 So.2d 266 (Miss.1969); Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953); Coleman v. State, 218 Miss. 246, 67 So.2d 304 In Bullock v. State, 391 So.2d 601 (Miss.1980), for instance, this Court su......
-
Crawford v. State
...similarly intolerant of third parties with no apparent authority who undertake to give consent for searches. In Martin v. State, 217 Miss. 506, 509, 510, 64 So.2d 629, 630 (1953), this Court held that consent from a man's brother-in-law was insufficient to circumvent the Mississippi Constit......
-
Spann v. State
...photographs which did not fairly depict the scene are inadmissible. See May v. State, 199 So.2d 635 (Miss.1967); Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953); Brett v. State, 94 Miss. 669, 47 So. 781 (1908); Fore v. State, 75 Miss. 727, 23 So. 710 (1898). In May, the trial court allo......
-
Wolf v. State
...make a second search of the property without obtaining a new search warrant. May v. State, 199 So.2d 635 (Miss.1967); Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953); Millette v. State, 167 Miss. 172, 148 So. 788 Assuming, then, that the officer had the authority to make a warrantless s......