McNutt v. State
| Decision Date | 07 June 1926 |
| Docket Number | 25662 |
| Citation | 143 Miss. 347,108 So. 721 |
| Court | Mississippi Supreme Court |
| Parties | MCNUTT v. STATE. [*] |
1. CRIMINAL LAW. Intoxicating liquors. Officer undertaking to search automobile without warrant is not final judge of probable cause or sufficiency of information on which he acts; whether officer searching automobile without warrant has probable cause or sufficient information is question for decision of court, when evidence so obtained is offered at trial; facts on which officer searching automobile without warrant acts must be sufficient in law to constitute probable cause (Laws 1924, chapter 244, section 2).
Where an officer, acting under chapter 244, Laws of 1924, section 2, undertakes to search an automobile without a warrant, the officer is not the judge finally of the probable cause, or the sufficiency of the information upon which such officer acts. This is a question for the decision of the court when the evidence obtained by the unlawful search is offered in the trial of the case. The facts upon which the officer acts must be sufficient in law to constitute probable cause, and this is a judicial question for the decision of the court.
2. CRIMINAL LAW. Admissibility of evidence is for decision of judge; evidence obtained by illegal search must be objected to when it is offered to render its admission error; without objecting to introduction of evidence claimed to have been obtained by illegal search, defendant cannot prove facts and have jury determine sufficiency of probable cause for search without warrant (Laws 1924, chapter 244, section 2).
The admissibility of the evidence is for the decision of the judge, and must be objected to at the time it is offered to be availed of. Without interposing objection, the defendant cannot, after the evidence is in, prove the facts before the jury and have the jury determine the sufficiency of the evidence to constitute probable cause. The rule might be different if the officer was being sued civilly or prosecuted criminally, and the defense was that he acted upon probable cause.
APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.
C. D McNutt was convicted of possession of intoxicating liquor and he appeals. Affirmed.
Judgment affirmed.
T. A. Clark, for appellant.
The record clearly shows that the sheriff had been watching appellant at least a day before he was caught, that it was the suspicion of the sheriff which caused him to make this search, and that he had no right under the law to act on suspicion in making this search. Furthermore, he had ample time to obtain a search warrant which he should have done. Moore v. State, 103 So. 483.
Section 2, chapter 244, Laws of 1924, clothed the sheriff and other officers with power to search automobiles and other vehicles when they had reasons to believe and did believe that intoxicating liquors were being transported in violation of law. I think the Moore case bears out the contention of appellant that the officer has no right to search the automobile on suspicion. The sheriff testified that he acted on information from a credible person which caused him to make the search.
The court was in error in sustaining objection to question of counsel for defendant to the witness, Sheriff Coleman, asking him from whom he obtained this information which caused him to make the search. The state was relying on the proposition of the right to make this search and seizure on the information of a credible person and, therefore, it was competent for the sheriff to disclose from whom he obtained this information so that it could be ascertained whether or not the informant was a credible person.
In this case the jury should not only have been called upon to pass on the question of the defendant's having in his possession intoxicating liquor, but they should have been permitted under proper instructions from the court to have determined the credibility of the person who gave the sheriff the information. It was only the sheriff's opinion as to the party being a credible person. Whether the informant was a credible person was a question for the jury.
In the case at bar it does not make any difference whether the appellant was guilty or innocent, whether he had liquor in his possession or not, but before he should be convicted he has a right to know and the jury ought to have a right to know whether the man who gave the information to the sheriff was a credible person. 24 R. C. L., p. 707, par. 9.
This cause should be reversed and defendant given a new trial.
Rufus Creekmore, Assistant Attorney-General, for the state.
The only point raised by counsel in his brief is that the sheriff did not have a search warrant and that the information on which he acted in searching the car of the defendant was not information obtained from a credible person so as to constitute probable cause. Their objection is based on the refusal of the court to permit the witness to be cross-examined as to what was the name of the informant. He makes the argument that the jury is the body which should have the right to say whether or not such informant was a credible person. In our opinion the cases of Moore v. State, 103 So. 483, and Loeb v. State, 133 Miss. 883, have decided this point contrary to the contention of the defendant.
The sheriff is the only party who would have the right to determine whether or not the facts given him by the witness were such facts as would...
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Henry v. State
...is submitted to the jury. Moreover, error cannot be predicated upon admission of evidence to which no objection was made. McNutt v. State, 143 Miss. 347, 108 So. 721; Harris v. State, 153 Miss. 1, 120 So. 206; Williams v. State, 171 Miss. 324, 157 So. 717; Dick, Aleck, and Henry, Slaves v. ......
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Richardson v. State
... ... State, 139 Miss ... 579, 104 So. 450; King v. State, 147 Miss. 31, 113 ... So. 173; Mapp v. State, 148 Miss. 739, 114 So. 825; ... State v. Messer, 142 Miss. 882, 108 So. 145; ... Ingram v. State, 144 Miss. 726, 111 So. 139; ... King v. State, 147 Miss. 31, 113 So. 173; McNutt ... v. State, 143 Miss. 346, 108 So. 721. See, also, 5 C. J ... 399; 2 R. C. L. 446; Malcolmson v. Scott, 56 Mich ... 459, 23 N.W. 166; Cunningham v. Baker, 104 Ala. 160, ... 16 So. 68, 53 Am. St. Rep. 27; Chandler v. Rutherford, 101 F ... 774, 43 C. C. A. 218 ... We ... ...
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Sykes v. State
...132 Miss. 154, 96 So. 166; Porter v. State, 135 Miss. 789, 100 So. 377; Morrison v. State, 140 Miss. 221, 105 So. 497; McNutt v. State, 143 Miss. 347, 108 So. 721; Moore v. State, 138 Miss. 116, 103 So. 483; v. State, 133 Miss. 883, 98 So. 449; are not in point, as the facts are different. ......
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Rooks v. State
...2), we held the knowledge of the officer of past conduct did not furnish probable cause for that particular search. In McNutt v. State, 143 Miss. 347, 108 So. 721 (1926), we held that it was a judicial inquiry for a court to determine whether or not probable cause existed, and not what the ......