McCarthy v. City of Gulfport

• Decision Date: 07 April 1924
• Docket Number: 24001
• Citation: 99 So. 501,134 Miss. 632
• Court: Mississippi Supreme Court
• Parties: MCCARTHY v. CITY OF GULFPORT

99 So. 501

134 Miss. 632

MCCARTHY v. CITY OF GULFPORT

No. 24001

Supreme Court of Mississippi

April 7, 1924

Division B

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Catherine McCarthy was convicted of the unlawful possession of intoxicating liquors, and she appeals. Reversed and remanded.

Judgment reversed and cause remanded.

C. B Adam, for appellant.

The officer did not have any search warrant and was therefore without any authority of law to make a search of the premises or of the person or effects of the appellant. Section twenty-three (23) of the Constitution of Mississippi. State v. Patterson, 95 So. 96-97; Hill v. State, 92 So. 579; Tucker v. State, 90 So. 845.

The court below erred in refusing to give a peremptory instruction as requested by appellant. The testimony offered by the city was incompetent and inadmissible unless the city could show that the officer had a valid search warrant for the premises of the appellant; and unless there was a valid search warrant for the premises of the appellant, the appellant was entitled to a peremptory instruction, Smith v. State, 98 So. 344; Constitution 1890, section 23.

In the case at bar there was no express invitation or freely granted permission on the part of the appellant, it was simply a case where an officer while on another mission entirely, discovered by accident a negro woman, shortly after daybreak in the morning, coming out of her own back door with a bundle under her arm and saw her deposit or place the same under the edge of her house. It matters not whether there was a stone wall drawn around her cottage or whether there was a single stretch of wire, or any kind or character of fence at all, that would make no difference. It was her premises, it was her castle, just the same and he had no right to invade that home, or to go under the edge of it and remove or examine, or take from it a bundle when he knew not what its content were. In Smith v. State, 98 So. 344, it is stated that when an officer acting under the badge of legal authority is wrongfully searching the private premises of a person, such private person is not required expressly to protest and object. The law recognizes that he is objecting to such unlawful search and his objection continues unless he expressly and voluntarily agrees otherwise after permission is asked and before the search is undertaken. In this case there was no request made by the officer to search the premises of the appellant, nor was there any permission granted.

No Brief filed for appellee.

OPINION

COOK, J.

On appeal to the circuit court of Harrison county the appellant Catherine McCarthy, was convicted of having in her...