Millette v. State

• Decision Date: 12 June 1933
• Docket Number: 30424
• Court: Mississippi Supreme Court
• Parties: MILLETTE v. STATE

148 So. 788

167 Miss. 172

MILLETTE v. STATE

No. 30424

Supreme Court of Mississippi

June 12, 1933

Division A

1 BURGLARY.

Defendant's guilt of burglary of drug store held for jury.

2. CRIMINAL LAW.

In prosecution of husband and wife for burglary, evidence that wife pointed out to officers sack afterwards found to contain stolen articles held competent against wife.

3. CRIMINAL LAW.

In prosecution of husband and wife for burglary, admitting evidence that wife pointed out to officers sack later found to contain stolen articles, if error, could not be complained of by husband, where wife testified substantially to truth of such evidence.

4. CRIMINAL LAW.

Where defendant did not request that officer be examined out of jury's presence respecting probable cause for arrest defendant could not complain on appeal of court's permitting questioning before jury.

5 ARREST.

Evidence that defendant checked out of hotel on night of burglary and had driven about town late at night, and had applied to physician for narcotics, showed probable cause for arrest without warrant for burglarizing drug store (Code 1930 section 1227).

6. CRIMINAL LAW.

Where there was probable cause for arrest of defendant's wife for burglary, search of the home where she was rooming incident to arrest was competent against her, although not competent against husband already in jail.

7. SEARCHES AND SEIZURES.

Search, under invalid warrant, of defendant's automobile while defendant was in jail for burglary, violated constitution; automobile being "possession" of defendant (Const. 1890, section 23)

8. CRIMINAL LAW.

In burglary prosecution, admitting evidence obtained by illegal search of defendant's automobile held reversible error.

9. CRIMINAL LAW. In burglary prosecution, failure to give "one juror" instruction held reversible error.

Instruction requested was in substance that it was sworn duty of juror to vote on every ballot for acquittal of defendants unless mind of such juror was convinced beyond all reasonable doubt and to moral certainty from evidence or want of evidence, and after conferring with other jurors, of guilt of defendants, and that juror could not under his oath compromise his honest convictions as to guilt or innocence of defendants for purpose of bringing in verdict.

10. BURGLARY.

In burglary prosecution, recent possession of stolen property made prima-facie case of guilt in absence of reasonable explanation.

11. BURGLARY.

Joint possession of stolen goods by husband and wife is presumed to be that of husband until contrary appears.

HON. J. I. STURDIVANT, Judge.

APPEAL from the circuit court of Clay county HON. J. I. STURDIVANT, Judge.

Fred Millette was convicted of burglary, and he appeals. Reversed and remanded.

Reversed and remanded.

Stovall & Stovall, of Okolona, and B. H. Loving, of West Point, for appellant.

The evidence is insufficient to sustain the conviction of this appellant.

Sorrells v. State, 94 So. 209, 130 Miss. 300; Hogan v. State, 90 So. 99, 127 Miss. 407; Nalls v. State, 90 So. 892, 128 Miss. 277.

The trial court erred in admitting over the objection of this appellant the evidence of the search of the house of Will Lester and the seizure of the alleged stolen property.

Section 23 of the Constitution of 1890.

The affidavit for the search warrant and the search warrant itself are utterly void upon their face as they do not designate or describe with any certainty whatsoever the things to be seized nor the place to be searched, and further the same did not set forth that the affiant in the affidavit believes and has reason to believe that the goods sought to be searched for were at the place to be searched, and that the same showed no probable cause, and are therefore void upon their face, and the evidence obtained by such search and seizure is inadmissible against anybody in this case, and is inadmissible against this appellant over his objection.

Section 1329, Code of 1930; Morrison v. State, 140 Miss. 221, 105 So. 497; State v. Watson, 133 Miss. 796, 98 So. 241; U. S. v. Clark, 18 F.2d 442; Woods v. U.S. 279 F. 706; Davis et al. v. State, 110 So. 447.

The trial court erred in admitting over the objection of this appellant the evidence of the search of his car and of the house of Will Lester because said search was made without probable cause and not incidental to a lawful arrest.

Toliver v. State, 98 So. 342; Agnello v. U.S. 70 L.Ed. 145.

Probable cause for arrest for a felony without a warrant is a judicial question and is to be determined by the court in the absence of the jury.

Mapp v. State, 114 So. 825; King v. State, 113 So. 173.

The learned trial court committed reversible error in admitting testimony as to the statements made by Mrs. Millette when she was arrested over the objection of this appellant, for the reason that same were inadmissible as to him.

Pickens v. State, 91 So. 906; 16 C. J., page 669; Whip v. State, 109 So. 697.

The court erred in refusing the instruction requested by appellant upon the "one juror theory" and the "no compromise theory."

Under our law an instruction embodying this "one juror" and "no compromise theory" must always be given in a criminal case, and especially where there is a serious conflict in the evidence as to the guilt of the defendant, and where it does not inevitably follow from all of the evidence that the jury can reach no other verdic than that of guilty, and we plant ourselves upon this principle and this law in this case.

Speaks v. State, 136 So. 921; Sanford v. State, 125 So. 726; Thomas v. State, 60 So. 781.

In the case of Roma et al. v. U.S. 53 F.2d 1007, which is a case decided by the circuit court of appeals of the 7th circuit, on November 31, 1921, and wherein Joseph Roma and Ernest John Brown were being tried jointly for converting United States property to their possession and wherein Brown made certain statements out of the presence of Roma of an incriminating nature and wherein the court on appeal ruled that such statements were admissible against Brown, but were incompetent against Roma.

Statements by defendant in murder cases out of codefendant's presence are inadmissible against latter.

Borum et al. v. U.S. 56 F.2d 301; U. S. v. Reid et al., 210 F. 486; State v. Robinson et al., 27 So. 124; Brunson v. State, 27 So. 410.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

The stolen property, or rather the biggest part of it, was found on the premises occupied by the accused and his wife. It was very recently after the commission of the burglary and larceny and in the absence of a reasonable explanation of their possession of such stolen goods, the presumption arises that the possessor thereof is the burglar. In a home occupied by husband and wife, the law presumes possession of the property is in the husband, and this presumption does not disappear until the contrary somewhere affirmatively appears.

Wylie v. State, 151 Miss. 897, 119 So. 825; Garland v. State, 146 So. 637.

So far as the narcotics were concerned, Mrs. Millette, testifying for the defendant, admitted everything that was testified about by the officers with reference to the sack of narcotics. In other words, her testimony is substantially the same as the officer's testimony on that subject. Therefore, so far as the sack of narcotics is concerned, error, if any, in admitting testimony with reference to it has been rendered harmless by this testimony of the defendant's witness, and it is immaterial whether they had a search warrant, or if they had one whether it was valid or not.

Goodman v. State, 130 So. 285; Prine v. State, 130 So. 687; Rawls v. State, 120 So. 211; Bowman v. State, 119 So. 176; Rucker v. State, 118 So. 716; Weatherford v. State, 143 So. 863.

Information to justify a search without a warrant must either identify the car to be searched or the occupants of the car. In the case at bar, the parties were identified as well as the automobile in which thy were traveling. The officer had located one of the occupants of the car and arrested him and was on the lookout for the other one. He asked Will Lester if she was in his house and he said that she was and led him, and those with him, to her. Therefore, we say that he was lawfully on the premises and it was proper for him to make the arrest without a warrant.

Love v. State, 142 Miss. 602, 107 So. 667; Monette v. Toney, 119 Miss. 846, 81 So. 593; Mapp v. State, 120 So. 170; Duncan v. State, 119 So. 179; Wallace v. State, 115 So. 778; Ingram v. State, 111 So. 362.

A search of the accused, as well as his personal effects, may be made as an incident to a lawful arrest.

Toliver v. State, 133 Miss. 789, 98 So. 342; Bird v. State, 154 Miss. 493, 122 So. 539; Watson v. State, 146 So. 122.

It is next contended that it was error for the court to go into the matter of probable cause for the arrest of appellant without a warrant in the presence of the jury. No request was made by appellant that the court inquire into this matter in the absence of the jury. In matters relating to the admissibility of evidence where it is necessary to inquire into its admissibility by preliminary inquiry, it is proper for the court to let the jury retire if the court is requested so to do.

Draughn v. State, 76. Miss. 574; Randolph v. State, 118 So. 354; Perkins v. State, 135 So. 357.

The instruction in the case at bar, the "one juror" instruction, probably contains the substance of the instruction referred to in the Speaks case, 136 So. 921, but it is by no means in the same language. There are two reasons why it appears to me that it is not error to refuse this instruction. In the first place, every fact and circumstance and the overwhelming weight...