McGowan v. State

• Decision Date: 30 January 1939
• Docket Number: 33462
• Citation: 184 Miss. 96,185 So. 826
• Court: Mississippi Supreme Court
• Parties: MCGOWAN v. STATE

185 So. 826

184 Miss. 96

MCGOWAN v. STATE

No. 33462

Supreme Court of Mississippi, Division B

January 30, 1939

APPEAL from the circuit court of Jefferson Davis county HON. J. C SHIVERS, Judge.

Jack McGowan was convicted of unlawfully possessing intoxicating liquors, and he appeals. Judgment reversed and cause remanded.

Reversed and remanded.

Martin & Farr, of Prentiss, for appellant.

There was no showing of probable cause. If we understand the law probable cause must be shown before there is any right to search a car. There must be the same degree of probable cause to justify a search without a warrant as would justify the issuance of a warrant.

Moore v. State, 138 Miss. 116, 103 So. 483; McNutt v. State, 143 Miss. 347, 108 So. 721; Mapp v. State, 114 So. 825; Early v. State, 121 So. 293; Story v. City of Greenwood, 121 So. 481, 153 Miss. 755; Arnold v. State, 120 So. 731; Sellers v. Loftin, 116 So. 104.

Our court held in Elardo's case, 164 Miss. 628, 145 So. 615, these three propositions, as we understand the case: That the requirements for probable cause are: (1) The information must be communicated as a fact within the knowledge of the informant; (2) the information must be evidence such as would be competent on the trial of the offense before a jury; (3) it must be such as would lead man of prudence and caution to believe the offense had been committed.

Informant must be shown as a credible person.

Story v. City of Greenwood, 153 Miss. 755, 121 So. 487; Goffredo v. State, 145 Miss. 66, 111 So. 131.

There is no showing any where in the record that Daniels was a credible person. On the contrary, the fact is Daniels was a bootlegger, a stool pigeon of the sheriff's, peddling information from rumor for money. He just saw Jack McGowan going away.

State v. Messer, 142 Miss. 882, 108 So. 145.

We submit that there was not sufficient showing of probable cause and that the search and seizure were unlawful and that the evidence admitted was unlawfully secured and inadmissible and that the defendant and appellant should be discharged, or the cause reversed.

W. D. Conn, Jr., Assistant Attorney General, for the State.

Whether or not probable cause exists is a matter for the determination of the trial judge.

McNutt v. State, 143 Miss. 347, 108 So. 721; Moore v. State, 138 Miss. 116, 103 So. 483; Holley v. State, 144 Miss. 726, 111 So. 139.

The information which the informant gave the sheriff and his deputy was given to them as a statement of fact within the knowledge of the informant himself.

Parks v. State, 178 So. 473.

The information which was given to the sheriff in this case comes, we think, within the same category as the information that was dealt with in Moore v. State, 138 Miss. 116, 103 So. 483; Story. v. Greenwood, 153 Miss. 755, 121 So. 481; and Parks v. State, 178 So. 473, and we submit thai the information here given was sufficient as such to justify the sheriff in making a search of appellant's automobile without the necessity of procuring a search warrant therefor.

OPINION

Ethridge, P. J.

Jack McGowan was tried in the justice of the peace court of Jefferson Davis county for the unlawful possession of intoxicating liquors, and was convicted and sentenced to pay a fine of $ 125 and costs; from which conviction he appealed to the Circuit Court, where he was tried anew, again convicted, fined $ 250, and sentenced to ninety days in jail. From which conviction he appeals here.

The evidence against the appellant was obtained by a search of the car, without a search warrant. The sheriff of the county, the constable of the district, and the marshal of the town made the search without a search warrant, upon a statement made by a negro, A. D. Daniels, to M. E. McRaney, the constable, and to the sheriff, A. H. Polk. The testimony was objected to on the ground that there was no probable cause shown prior to the search sufficient to authorize it, under the law. I shall quote from the evidence at some length: "Q. At the time you made the search tell the court whether or not you had a search warrant? I did not. Tell the. court if you had no search warrant if you had information from a person as to liquor coming? Yes, sir. After receiving the information from this person that Jack McGowan was bringing whiskey, tell the court whether or not you had sufficient time to obtain a search warrant? I did not. Tell the court whether or not the fellow who gave you that information told you that you didn't hare time? Yes, sir. What information did he tell you as to how quickly you must act if you were to intercept the liquor? He said I had to be quick. Tell the court if this party told you where the defendant was going to obtain the liquor? Yes, sir. Tell whether or not he told you the amount of liquor he was going to get and bring back? Practically the amount. Who was the person that gave you that information? He started talking to Mr. McRaney about it and I came up and he told both of us about it then. And who was that? A. D. Daniels. Was that a colored man or white man? A colored man. Did he tell you the party whom he was going to get the liquor from up there? I am not sure but I believe he did."

This was on the preliminary examination of the sheriff, and after such examination, motion was made to exclude the evidence, which motion was overruled.

On cross-examination the following questions and answers were obtained: "Q. Who was the fellow that gave you that information? A. D. Daniels. Was that a white man or a negro? A negro. Did you promise him anything? I wouldn't be surprised. You promised him something then? I got what he told me and if I'm a mind to pay him I can but I haven't paid him anything yet. What was it he told you now? He told me Jack McGowan had gone after liquor. Did he tell you that as a fact? I guess so because it turned out like he told me. You don't know but what somebody told him, do you? I don't know. He didn't communicate that as a fact within his knowledge to you, did he? He told both of us but I don't know anything about his knowledge. I didn't ask him anything about that. But it was not communicated to you as a fact within his knowledge, was it, Sheriff? I didn't ask him where he got his knowledge. How did you know the fellow coming down there was the man you wanted?"

By the District Attorney, "If the Court please I submit he has gone into that sufficiently." The Court, "I think so, too."

"Q. This fellow A. D. Daniels you say you talked with down there in front of the bank, did he tell you that he knew Jack McGowan had whiskey that night? I never asked him--he just told me he was gone after it and I said, 'All right'--He didn't tell you he knew it, did he? I didn't ask him how he knew it and didn't care. He didn't state any lacks to you within his knowledge, did he? He didn't say Where he got his information. You have used him before in these liquor matters, haven't you? That's up to me, Mr. Martin. You've paid him money before, haven't you? That's got nothing to do with this case. I ain't never paid him anything but that's got nothing to do with this case?"

Mr. McRaney, the constable, testified substantially to the same effect, except that he said Daniels told him that McGowan was going to get the liquor from Vardaman Smith, up above Mt. Olive.

The court, after this preliminary hearing, overruled the objection, and the testimony was introduced before the jury, where it appeared in the examination of Mr. McRaney, the constable, that A. D. Daniels had been before the court a number of times on charge of violation of the liquor laws. Daniels was not called as a witness, either on the preliminary hearing or on the trial on the merits.

In Moore v. State, 138 Miss. 116, 103 So. 483, it was held that an automobile might be searched without a warrant, upon probable cause that it contained intoxicating liquors, or that such liquors were being transported in such vehicle. This was a decision growing out of the apparent necessity of the case, necessity being the basis for authorizing search without compliance with section 23 of the State Constitution prohibiting the issuance of such warrants without probable cause, supported by affidavits, particularly describing the place to be searched or the person or thing to be seized. In that case the majority opinion held that when a search is made without a warrant, the person making it must justify his act by proving that he had probable cause.

In McNutt v. State, 143 Miss. 347, 108 So. 721, it was held that what constitutes probable cause, or sufficient evidence to constitute probable cause, are judicial questions to be determined by the court; that the judgment of the officer making the search in regard to the matter is not sufficient, unless the facts, on judicial inquiry, authorize a finding that it is. And, in effect, the same was held in Mapp v. State, 148 Miss. 739, 114 So. 825.

In Elardo v. State, 164 Miss. 628, 145 So. 615, it was held that the law did not authorize an officer to make a search on mere information...