Orick v. State

• Decision Date: 05 October 1925
• Docket Number: 24841
• Citation: 105 So. 465,140 Miss. 184
• Court: Mississippi Supreme Court
• Parties: ORICK et al. v. STATE. [*]

105 So. 465

140 Miss. 184

ORICK et al. v. STATE. ^[*]

No. 24841

Supreme Court of Mississippi

October 5, 1925

(In Banc.)

1 ARREST.Person may not be arrested without warrant, for misdemeanor not committed in officer's presence.

Section 23 of the state Constitution of 1890, providing that the people shall be secure in their persons, houses, and possessions from unreasonable seizure or search, and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized, prohibits the arrest of a person without a warrant for a mere misdemeanor not committed in the officer's presence.Butler v. State135 Miss. 885, 101 So. 193, cited.

2.CRIMINAL LAW.Evidence obtained by means of unlawful arrest or unlawful search and seizure is not admissible, and conviction based thereon will be reversed.

In the case of an unlawful arrest or an unlawful search and seizure evidence obtained by means of such unlawful arrest or search is not admissible in evidence against the accused on a crime charged involving the matters about which the arrest or search was made, and, if such evidence is admitted, a conviction will be reversed.Tucker v. State128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and other cases cited.

3.CRIMINAL LAW.Searches and seizures.Statute providing that testimony of officer of intoxicating liquor, still, etc., in trial involving violation of prohibition laws, should not be inadmissible because officer did not have proper search warrrant, held unconstitutional.

Section 3 of chapter 244,Laws 1924, providing "the testimony of any lawful officer or officers and the introduction as evidence of any intoxicating liquor or any still or appliance or receptacle used in the manufacture or transportation of the attempted manufacture or attempted transportation of intoxicating liquor, in the trial of any criminal case involving a violation of the prohibition laws of the state of Mississippi, shall not be rendered inadmissible or incompetent, by reason of the fact that such officer, or officers, was not armed with a due and proper search warrant authorizing the search of the building, room in a building, place, or of the automobile or other vehicle in the course of which search the facts and information testified to were ascertained and discovered and the liquor, stills, and appliances for its manufacture or transportation were seized," is unconstitutional, being in conflict with sections 23and26 of the state Constitution of 1890.

McGOWEN, J., and SMITH, C. J., dissenting.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Tishomingo county, HON. C. P. LONG, Judge.

Hose Orick and Clovis Clingan were convicted of possessing intoxicating liquor, and they appeal.Reversed and remanded.

Judgment reversed and cause remanded.

T. A. Clark, for appellants.

It is the contention of appellants that the officers could not testify against them because they are protected under the search and seizure provision (section 23 of the Constitution) requiring a warrant to seize as well as to search and that this seizure was unlawful because these officers had no warrant and the record shows that they did not know that this was intoxicating liquor until after they illegally seized it.

7 Words & Phrases, First Series, 6400, defines the word "seize" as follows: "To seize is to take hold of suddenly and forcibly; to take possession of by force; in law seizure is the act of taking possession by virtue of an execution or legal authority."SeeVaughan v. State,101 So. 439.

At the time these officers threw their guns on the appellantsthey had these containers in their hands and so far as these officers knew, had not violated any law, and when they dropped these containers, when the officers told them to throw up their hands, and took the containers from the ground, this was a seizure by these officers, and it being a seizure without a warrant they could not testify.

The appellants had not committed a misdemeanor in the presence of these officers, as they did not know what was in the containers until after they picked them up.The defendants did not drop the containers until after the officers had thrown their guns in their faces, and demanded that they throw up their hands.

It was the unlawful act of the officers that put in motion the acts of the appellants in dropping the containers.This was a forcible seizure, and one which is in violation of the plain provisions of section 23 of the Constitution.The conduct of the officers was unlawful from beginning to end.Butler v. State,101 So. 193.

J. L. Byrd, Assistant Attorney-General, for the state.

As we view this record, the only question in the case is whether or not the arrest of these parties, and the seizing of the liquor was legal.If legal, the cause should be affirmed, and if illegal, of course, it must be reversed.We see no way to save this case for the state unless this court should overrule the case of Butler v. State,101 So. 193, andVaughan v. State,101 So. 439.

For elaborate citation and discussion of authorities, relative to constitutionality of section 3, chapter 244,Laws 1924, see brief for state in Donovan Moore v. State,138 Miss. 116, at 123-150.

ETHRIDGE, J. MCGOWEN, J., dissenting.

OPINION

ETHRIDGE, J.

The appellants were indicted for unlawfully having intoxicating liquor in their possession, were convicted, and fined two hundred and fifty dollars each, and sentenced to a term of ninety days in the county jail, from which judgment they appealed.

Appellants were arrested without a warrant, and without any showing of probable cause for a belief by the officer that they had committed or were committing a crime.The officer making said arrest stated that there was a report of a disturbance over at a negro dance hall, and that he went over there and went to the back of the dance hall, and listened to see if he could catch onto what was happening; that these appellants came out meeting another; that he jumped out on them and told them to consider themselves under arrest and to put up their hands; that he picked up a fruit jar and a bottle which they dropped, which proved to contain whisky; Orick dropped the fruit jar and Clingan the bottle; that at the time he saw appellantshe did not know what the fruit jar or the bottle contained, nor did he know what they had in their hands; that, at the time he drew his pistol on appellants and called on them to surrender, he did not know what was in their hands, nor does the testimony show that appellants were doing anything that would reasonably cause an officer to know or believe they were committing any offense or had committed any offense.The testimony offered was promptly and vigorously objected to and admitted over objection and exception.

In Butler v. State,135 Miss. 885, 101 So. 193, we held that, where a policeman who had no warrant for defendant's arrest, and who did not know at the time he undertook to arrest defendant and search his possessions that defendant was committing a crime in his presence, who fired at defendant while defendant was running from him and caused the defendant to drop his sack, which the policeman searched without a warrant, such act was unlawful, and that evidence so obtained could not be admitted in evidence on the trial of the defendant for such crime.It was there held that an arrest could not be made for a misdemeanor without a warrant, unless the offense was committed in the officer's presence.This opinion cited Tucker v. State,128 Miss. 211, 90 So. 845, 24 A. L. R. 1377.

In the Tucker case just cited we held that, under section 23 of the Constitution, evidence unlawfully obtained by an officer, acting under color of office and without a warrant, could not be introduced in evidence against a defendant, in a prosecution for the offense which the evidence, unlawfully obtained by such officer, disclosed, holding that the Constitution gave protection to the person whose rights were so invaded, citing and following in that caseBoyd v. United States,116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746;Weeks v. United States,232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177;Gouled v. United States,255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647;andAmos v. United States,255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654.We quoted from these cases, and held that, while the holding of the United States supreme court construing the federal Constitution against unlawful searches and seizures was not binding on the states, still we adopted the reasoning and conclusions of those decisions as being the proper construction of the protection intended to be afforded by section 23 of our state Constitution.The Tucker case was followed by several decisions shortly after its rendition, but was vigorously assailed in the case of Owens v. State,133 Miss. 753, 98 So. 233, and was carefully reconsidered by the courtin banc, and, after the fullest and most deliberate and protracted consideration, the court adhered to the doctrine of the Tucker case, and has subsequently upheld the Tucker case and the doctrine therein announced in numerous cases in which the holding was predicated upon a construction of section 23 of the Constitution.Among the cases so holding are Smith v. State, 133 Miss. 730, 98 So. 344;McCarthy v. Gulfport,134 Miss. 632, 99 So. 501;Cuevas v. Gulfport,134 Miss. 644, 99 So. 503, Taylor v. State, 134 Miss. 110, 98 So. 459;Rignall v. State,134 Miss. 169, 98 So. 444;Falkner v. State,134 Miss. 253, 98 So. 691;Butler v. State,135 Miss. 885, 101 So. 193;Jordan v. State,135 Miss. 785, 100 So. 384;Wells v. State,135 Miss. 764, 100 So. 674.

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