May v. State, 44433

• Decision Date: 05 June 1967
• Docket Number: No. 44433,44433
• Citation: 199 So.2d 635
• Parties: Durwood MAY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 635

199 So.2d 635

Durwood MAY v. STATE of Mississippi.

No. 44433.

Supreme Court of Mississippi.

June 5, 1967.

Walker & Sullivan, Mendenhall, for appellant.

Joe T. Patterson, Atty. Gen., by R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellee.

RODGES, Justice:

Durwood May, appellant, was indicted, tried, convicted and sentenced to life imprisonment in the Circuit Court of Simpson County, Mississippi, on a charge of having murdered his wife, Daisy Ann May. He appealed to this Court, and has presented several serious assignments of error. We have concluded that the case must be reversed for a new trial; therefore, we discuss only the facts essential to the explanation of the points of error on which this opinion is based.

Durwood and Daisy Ann May had been married for almost nineteen years at the time of the tragedy in the death of Daisy Ann May. Six children, ranging in age from five to seventeen years had been born to this union. On the night of July 3, 1966, the appellant, Durwood May, his wife and four of their children, spent the night at the home of the sister of Daisy Ann May near Brandon, Mississippi. The next afternoon they drove to Jackson to get their daughter, Kay May, but it developed that Kay wanted to go to the Coast with some friends. Mr. and Mrs. May permitted Kay to go with her friends rather than return with them to their home. They then drove to their home. It had been raining, and when Mrs. May got home, she began to sweep the carport. Mr. May went into his bedroom and obtained a target pistol. He went out on the carport where his wife was sweeping, and there, it is said, he threatened his wife with a pistol. She went into the house and he followed her. While the children were engaged in cooking and looking at television, the gun in his hands went off, and Mrs. May was struck with a bullet. She fell out of the front door. Mr. May and one of their sons ran to her and put her on the couch. An effort was made to call a medical doctor by telephone. When they were unable to reach the doctor, Mr. May and one of his sons put Mrs. May into an automobile and took her to the hospital. Dr. Charles Pruitt was at the hospital, and he examined Mrs. May and determined that she was dead. Constable C. B. Barnard was notified and he took appellant to the jail in Magee. Later, the Sheriff, Howard M. Varner, and Lloyd Jones, Highway Patrolman, took appellant from the Magee jail to the Simpson County Jail at Mendenhall, Mississippi.

The Sheriff and Highway Patrolman then went to the home of appellant's father, John May, and talked to the children of appellant. George Henry May, fifteen year old son of appellant, went with the officers to appellant's home, and unlocked the front door. The officers entered appellant's home and made an examination of the scene where the homicide is said to have occurred. George Henry May went into his father's bedroom and found his pistol under the mattress of the bed, and showed it to the officers. They took pictures of the pistol by lifting the mattress and pointing at it. They held strings and tapes from the place where appellant was said to have been standing at the time the gun was fired, and took pictures of the officers holding the tape. They took pictures outside of the house where Mrs. May fell after the shot was fired.

One of the officers drew a diagram of the house, showing the various rooms and their measurements. He also wrote on the map or plat information given him by others. For example: 'Daisy Ann May fell here.'

In the meantime, an investigator of the Highway Patrol went to the funeral home and made two colored pictures of the nude body of deceased above the waist. One of these pictures has a probe pointing at a bullet hole indicating the direction of the path of the bullet.

During the trial, attorney for appellant objected to the introduction of the pictures taken in his home upon the ground that these pictures and the pistol found under the mattress were obtained by an unlawful search of the home inasmuch as the officers acted without the consent of appellant and without a search warrant. The trial court overruled this objection and the photographs and pistol were introduced in evidence and given to the jury. We hold that this action on the part of the court was reversible error.

Mississippi Code 1942 Annotated section 2470 (1956) provides that it is the duty of an officer to make arrest of a person when such person has committed an indictable offense or a breach of the peace is threatened in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested has committed it.

Moreover, Mississippi Code 1942 Annotated section 2471 (1956) provides that an officer may break into a dwelling house where he has reason to believe the offender may be found.

When an officer is required to go into a dwelling house or a place for the purpose of making an arrest, he may observe the surrounding scene of the alleged crime, and make a search of the person arrested and the surroundings, and in so doing, he may take pictures of the area, and may seize evidence of the crime, including weapons, and articles that may be employed by the offender to make an escape. Hughes v. State, 196 Miss. 282, 17 So.2d 444 (1944); Pickett v. State, 139 Miss. 529, 104 So. 358 (1925).

The right of an officer to search a prisoner incident to a lawful arrest involves a different legal principle than that prohibited by the search and seizure clauses of the State and Federal Constitutions. The search of a prisoner and the surrounding area where the prisoner is apprehended is not only necessary in order to discover weapons with which the prisoner may escape, but it is also the duty of the officer to make an investigation of the crime for which the prisoner is apprehended, and take into his possession evidence that may be used in the prosecution of the defendant. Harris v. State, 216 Miss. 895, 63 So.2d 396 (1953); Millette v. State, 167 Miss. 172, 148 So.2d 788 (1933); Bird v. State, 154 Miss. 493, 122 So. 539 (1929); Mapp v. State, 152 Miss. 298, 120 So. 170 (1929); Thompson v. State, 153 Miss. 593, 121 So. 275 (1929); Pickett v. State, 139 Miss. 529, 104 So. 358 (1925); 4 Am.Jur. Arrest § 68 (1936); Annot. 82 A.L.R. 782, 784 (1933); Annot. 74 A.L.R. 1387, 1398 (1931); Annot. 51 A.L.R. 424, 431 (1927); Annot. 32 A.L.R. 680, 681 (1924).

On the other hand, an officer cannot enter a home of one charged with crime after defendant has been arrested and incarcerated in jail without his consent and without a valid search warrant.

In the case of Page v. State, 208 Miss. 347, 44 So.2d 459 (1950), we pointed out that the sheriff could take evidence of crime at the time that he went upon the property of defendant to make an arrest, but that after defendant had been arrested and put in jail, the officer could not return to the home of defendant and make a search without his consent and without a lawful search warrant.

In Lancaster v. State, 188 Miss. 374, 195 So. 320 (1940), the officer returned to the home of defendant the next day, after having incarcerated defendant in jail, and searched for an axe. The officer had a search warrant but it was void, and this Court held that the officer could not testify with reference to the search. We also held that a neighbor, who saw the officer make the search, could not testify to facts uncovered by the unlawful search. This case clearly points out that a search of the defendant's home the next day after he was incarcerated is not an incident to the arrest.

In the case of Martin v. State, 217 Miss. 506, 509, 510, 64 So.2d 629, 630 (1953), we said:

'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 had no authority to go upon the premises of appellant while he was in jail without a search warrant.'

In the case of Joyce v. State, 227 Miss. 854, 860, 861, 87 So.2d 92, 93, 94 (1956), we said:

'It was error to permit Sheriff McClellan and Bahin to testify concerning the facts they learned as a result of their illegal entry upon the defendant's property without a search warrant. They could testify as to what they saw with their eyes from the public road passing by the defendant's house. That would not constitute an unreasonable search. * * * However, they entered defendant's property and searched it without a search warrant, and evidence obtained as a result of such illegal search was wholly inadmissible.

'This conclusion applies also to the photographs taken of the pickup truck on defendant's property. Compare Martin v. State, 1953, 217 Miss. 506, 511-513, 64 So.2d 629. The photographs were taken after appellant had been arrested, and without a search warrant. Apparently appellant was in jail at the time. At any rate, the second entry made upon appellant's property without a search warrant, which apparently was for the purpose of taking the photographs, was also an illegal entry and search. The photographs should have been excluded by the trial court.'

In Jones v. State, 170 Miss. 581, 586, 155 So. 430, 431 (1934), this Court said:

'The appellant was in his home, and no person or officer had a right to enter except in strict accordance with the law. No matter how humble, a man's home is his castle, and no one can enter without his consent, except in strict accordance with the law. An English statesman said that, though a home be poor, no officer can enter; that the wind and the rain may enter, but a King could not, except in strict...