McCollum v. State

• Decision Date: 03 April 1967
• Docket Number: No. 44394,44394
• Parties: Malcolm McCOLLUM v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 252

197 So.2d 252

Malcolm McCOLLUM v. STATE of Mississippi.

No. 44394.

Supreme Court of Mississippi.

April 3, 1967.

Suggestion of Error Overruled April 24, 1967.

Albert Sidney Johnston, III, Pascagoula, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

JONES, Justice:

Appellant was convicted in the Circuit Court of Jackson County of possession of burglary tools, from which conviction he appeals.

Two errors of the lower court are alleged, to-wit: (1) The tools shown to the jury should not have been introduced into evidence because they were obtained as a result of an illegal arrest; and, (2) The court erred in not granting a mistrial because of alleged prejudicial statements made by the district attorney in his closing argument.

We affirm the case.

Miss Elizabeth Wagner testified that Davis Street is between her home and Griffith Street Grocery in Moss Point. On March 18, 1966, between 2:30 and 3:00 a.m., an automobile stopped just outside her window. Three figures left the area of the car and went to the front of the grocery. There she could not see them, but she heard a noise and thereupon called the police. The car stopped about 30 feet from where she was sleeping. It was an old model, dark colored car. She did not know the make. There was no other activity about the store or her home.

Mr. Bobby L. Smith, a captain of police of the City of Moss Point, testified he received a police radio call while cruising on Main Street about two blocks away on the night of March 18, 1966, regarding a disturbance at the Griffith Street Grocery. The information over the radio was there was an attempted breaking and entering; that there was involved a dark colored, old model car with three subjects in it. As he proceeded toward the grocery he met an old model 1958 Chrysler, dark colored-either black or blue-containing three people. He put this information on the radio, but did not stop the car. Proceeding to the store, he found the front door lock lying on the steps. It had been cut. After checking the store and discovering the lock had been cut, he, as he expressed it, 'put it back over the air' that he had met a '58 model dark Chrysler on Bellevue Street. This was the only car in the area. No one is supposed to be on this radio system except the police, including the Pascagoula force, a few miles from Moss Point.

Mr. Leffie Fountain was a member of the Police Department of the City of Pascagoula. He was on duty on the morning of March 18, 1966, and heard Captain Smith of Moss Point say on the radio to be on the alert for a black or dark colored Chrysler with three subjects in it-either a 1957 or 1958 Chrysler. Mr. Fountain had been advised by the police department radio that there had been a burglary committed at the Griffith Street Grocery in Moss Point. He was advised that Captain Smith had seen this 1957 or 1958 black or blue Chrysler going east on Bellevue Street near the grocery store. Not five minutes after receiving the call from Captain Smith the witness located the automobile at Highway 90 and Telephone Road. When he first saw the car, it was traveling south on Telephone Road but then turned right onto Highway 90 going toward the toll bridge and Pascagoula. The witness turned and followed the automobile. He stopped it just before reaching the toll bridge. The defendant was driving the car. About the time the car was stopped, Lt. Howard and Patrolman Doggett pulled their patrol car behind the witness. When the witness stopped the car, then he got out and with Lt. Howard went over to the car where the defendant was. There they saw in the car a regular potato sack facing the direction of the witness with the opening so that the witness could see several crowbars, or what appeared to be crowbars. At this point, objection was made and the jury was retired. In the absence of the jury, he testified that on the back floorboard of the automobile he saw a sack. He saw this by looking through the glass. One end of the sack was open and atop the sack was a long crowbar. From where he was, looking through the glass, he could see what appeared to be several other crowbars, several hammers, or the end of hammers, a wire-looking thing, and other tools, including a bolt cutter. Lt. Howard placed the men under arrest and notified the defendant that he was under arrest. After defendant was arrested, the witness examined the tools more closely and stated that he could identify them. When he first saw the automobile, he made a U-turn and started back in the direction it was going. The witness said that he had seen the car some distance east from where it was stopped, but that his force made a practice of calling in the tag number when they had reason to believe there might be something about a car. It took some time for the desk sergeant to hear the tag number and write it. When he stopped the car by the use of his red light, he got out of the patrol car and the defendant got out of his car. The witness walked to the rear of the defendant's car and defendant got this driver's license and the witness talked to him.

Witness checked the driver's license and asked for his registration papers. Witness checked them and they corresponded with the name on the driver's license. About that time, Lt. Howard had gotten there alongside the car. The defendant objected at this point to introduction of the burglary tools on the ground of an illegal arrest and an unlawful search. The court overruled the objection and the trial proceeded resulting in the conviction of the defendant as aforesaid.

Defendant asserts that the arrest of the defendant was unlawful, and, therefore, the tools obtained as a result of said arrest were inadmissible in evidence.

There can be no question as to the reliability of the person from whom the arresting officer received his information. It came from the police department. There is no attempt to say Miss Wagner, who conveyed the first information to the police, was an unreliable person.

The police did not rely alone upon the message from Miss Wagner, but Captain Smith proceeded to investigate. He found there had actually been a breaking and entering; that there was a car in the vicinity which had three people in it, of the same general description as ithat given by Miss Wagner, and the only car in the area.

Mississippi Code 1942 Annotated section 2470 (1956) provides:

'An officer * * * may arrest any person without warrant, * * * when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; * * *'

In the annotation to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, 1736-1739 (1959), we find the following statement:

'The existence of 'probable cause' or 'reasonable grounds' justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The determination depends upon the particular evidence and circumstances of the individual case. The facts necessary to upheld an arrest without a warrant must be sufficiently strong to support the issuance of a warrant for arrest. Standards which may be reasonable for the apprehension of back robbers may not be reasonable for the arrest of narcotics peddlers.

"Probable cause' or 'reasonable grounds' justifying an arrest without warrant exist where the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a narcotics offense has been or is being committed. It is not required that probable cause be established solely by facts within the personal knowledge of the arresting officer. A combination of information and personal knowledge may raise the inference beyond opinion, suspicion, and conjecture to reasonable probability. All information in the agents possession, fair...