Pickett v. State

• Decision Date: 11 November 1929
• Docket Number: 28147
• Court: Mississippi Supreme Court
• Parties: PICKETT et al. v. STATE

124 So. 364

155 Miss. 386

PICKETT et al. v. STATE

No. 28147

Supreme Court of Mississippi

November 11, 1929

Division B

1. SEARCHES AND SEIZURES. Defendant cannot complain of introduction of evidence obtained without search warrant without first showing possession or right to possession of property searched. Where an officer without a search warrant goes upon property and discovers persons manufacturing liquor, which amounts to a felony under the law, before the defendant can complain of the introduction of the evidence he must show that he had possession or right to possession of property. He cannot complain of the invasion of the rights of other property owners.

2. CRIMINAL LAW. Court should hear evidence on admissibility of evidence for absence of search warrant or insufficiency of probable cause out of jury's hearing; refusal to hear evidence on admissibility of competent evidence obtained without search warrant out of jury's hearing is not reversible error.

When objection is made to evidence on the ground of the absence of a search warrant, or, in the case of a felony, on the ground of insufficiency of evidence to show probable cause, the court should hear evidence upon the admissibility of evidence out of the hearing of the jury, and permit all evidence upon that proposition to be then offered. But the court will not reverse for a refusal so to do, if the evidence is, in fact competent, as no prejudice results to the defendant.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS Judge.

Andy Pickett and others were convicted of manufacturing intoxicating liquors, and they appeal. Affirmed.

Judgment affirmed.

H. F. Jones, of Belzoni, for appellants.

The law does not require ownership of the premises to be searched, but possession is only necessary, or control of the premises sought to be searched by the officer.

A deputy sheriff of Humphreys county searched the premises of two of appellants without a warrant for making a search, and it is now the settled policy that homes may not be searched without a proper affidavit made before a proper officer of the county and a warrant based thereon obtained.

Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377; Williams v. State, 129 Miss. 469, 92 So. 584; Butler v. State, 129 Miss. 778, 93 So. 3; State v. Patterson, 130 Miss. 680, 95 So. 96; McCarthy v. City of Gulfport, 134 Miss. 632, 99 So. 501.

The court should have had the jury retire upon the motion of the defendants to determine from an examination of the officer before the court whether or not he had information from a credible person of the existence of the still.

McNutt v. State, 108 So. 721; Perry v. State, ex rel. Wood, 116 So. 430, 150 Miss. 293; Sellers v. Lofton, 149 Miss. 849, 116 So. 104.

The original search and discovery was illegal and the subsequent acts of officers following it are also illegal.

Robinson v. State, 136 Miss. 850, 101 So. 706.

Forrest B. Jackson, Assistant Attorney-General, for the state.

The land where the defendants were found engaged, in crime was not owned by them, nor was it under their immediate control at the time the still was discovered, nor on the date that the arrest was made.

Lee v. Oxford, 134 Miss. 647, 99 So. 509; Ashley v. State, 140 Miss. 367, 105 So. 846; Harris v. State, 98 So. 349; Falkner v. State, 98 So. 693.

OPINION

Ethridge, P. J.

The appellants were indicted, tried, and convicted of the crime of manufacturing intoxicating liquors, and sentenced to a term of two years each in the state penitentiary, from which conviction this appeal is prosecuted.

The circumstances leading up to the detection and arrest of the defendants are about as follows: The deputy sheriff was serving process one afternoon out in the country, and left his car on the highway, and went...