Polk v. State

• Citation: 142 So. 480,167 Miss. 506
• Decision Date: 13 June 1932
• Docket Number: 29902
• Court: Mississippi Supreme Court
• Parties: POLK et al. v. STATE

142 So. 480

167 Miss. 506

POLK et al. v. STATE

No. 29902

Supreme Court of Mississippi

June 13, 1932

APPEAL from the circuit court of Forrest county.

(In Banc.)

1 ARREST.

Gambling statute, in so far as it authorizes arrest without warrant for misdemeanor not committed in presence of officer making arrest, held to violate Constitution (Code 1930, section 1235:

Constitution 1890, section 23).

2. SEARCHES AND SEIZURES.

Provisions of gambling statute authorizing breaking into place for purpose of searching and making arrest without search warrant held to violate constitutional provision prohibiting unreasonable searches and seizures (Code 1930, section 1235; Constitution 1890, section 23).

3. CRIMINAL LAW.

Evidence against owner of premises obtained by both illegal search and illegal arrest held inadmissible in gambling prosecution (Code 1930, section 1235).

4. SFARCHES AND SEIZURES.

Persons not owners of premises searched could not complain of evidence obtained against them by illegal search (Constitution 1890, section 23).

5 ARREST.

Where officer broke window and raised shade and saw persons not owners of premises engaged in gambling, their arrest was legal (Code 1930, section 1235).

SMITH C J., dissenting, and ANDERSON, J., dissenting in part.

HON. W J. PACK, Judge.

HON. W. J. PACK, Judge.

Ernest Polk and others were convicted of gambling, and they appeal. Judgment reversed as to defendant Polk, and affirmed as to the other defendants.

Reversed in part, and affirmed in part.

Morris & Wingo, of Hattiesburg, for appellants.

The only question for determination is whether section 1235, Code of 1930, is constitutional.

This statute has never been passed upon by our supreme court, and this is no doubt true because of the fact that there is usually imposed the nominal fine in cases of guilt, thereby making it unprofitable and prohibitive to bear the burden of costs in prosecuting appeals to our highest tribunal.

By this statute any officer who "knows" or "has reason to suspect" any person to be guilty of gambling "may apprehend such person with or without a warrant," and bring him before some officer having proper jurisdiction. This plainly means that an officer can arrest one for a misdemeanor, since gaming with cards is a misdemeanor by statute, without a warrant and at a time when such misdemeanor was not committed in the presence of the officer.

Our courts have repeatedly held, and properly so, that an officer has no right to arrest one charged with a misdemeanor unless he be armed with a warrant, or unless such misdemeanor be committed in the presence of the officer.

Butler v. State, 101 So. 93; Orick et al. v. State, 108 So. 442.

People shall be secure in their persons, houses and possessions from unreasonable seizure or search; 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.

Section 23 of the Constitution of 1890 of the State of Mississippi; Section 1329 of the Mississippi Code of 1930.

Under section 1976 of the Code of Mississippi of 1930 the legislature gave to an officer the right to search vehicles for the unlawful transportation of intoxicating liquors without a search warrant, provided the officer have reason to believe, and does believe, that such vehicle is being so used. But this section shall not authorize the search of a residence, home, room, building or the premises belonging to or in the possession lawfully of the person suspected, without a search warrant.

It is apparent that section 1235 of the Mississippi Code of 1930 is a direct attempt to completely nullify section 23 of the Constitution of 1890, and thereby permit an officer to break into one's home without a search warrant or without a warrant for the arrest of some person then in such home, or without having witnessed a misdemeanor committed in the officer's presence, and merely because such officer knows or has reason to believe that gaming is going on therein.

Watson v. State, 98 So. 241; Helton v. State, 101 So. 701; Iupe v. State, 105 So. 520.

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

In the case at bar this search was made without a warrant, but the officer making the arrest testified that he had information to the effect that gambling was being engaged in at the home of appellant, Ernest Polk, and the effect of his testimony was that he had probable cause. Probable cause existing, and the search not being unreasonable, we contend that the search was legal and evidence obtained thereby admissible.

Whether or not this search was unlawful or unreasonable, or whether or not the statute attacked in this case contravenes section 23 of the Constitution, all the appellants herein, with the exception of Ernest Polk, are not in a position to claim that the search was illegal and the evidence obtained thereby inadmissible.

Lee v. City of Oxford, 134 Miss. 647, 99. So. 509; Lovern v. State, 140 Miss. 635, 105 So. 759.

If the court should hold that this statute does not contravene the provision of section 23 of the Constitution, then this case should be affirmed as to all of the appellants. If this section 1235 is unconstitutional, then the case should be reversed as to Ernest Polk and affirmed as to the others.

Anderson, J., ETHRIDGE and GRIFFITH, JJ., join in this opinion. McGowen, J., specially concurring. Judge COOK joins in this concurring opinion. Smith, C. J., dissenting.

OPINION

Anderson, J.

Appellants, Ernest Polk, Robert House, James Elliot, Willie Johnson, and Tom Graham, were convicted of a misdemeanor, gambling, in the court of a justice of the peace of Forrest county. From that judgment they appealed to the county court where there was a trial de novo, resulting in a verdict and judgment of guilty. From that judgment they appealed to the circuit court where the judgment of the county court was affirmed. The appeal to this court was allowed by the circuit judge under the authority of section 705 of the Code of 1930 upon the ground that in the determination of the case a constitutional question was necessarily involved.

Appellants were convicted alone upon the testimony of Walter Risher, a constable of Forrest county. He testified substantially as follows: That on a certain night in June, 1931, his son told him that there was gambling going on in the home of appellant Ernest Polk; that his son told him that he had been so informed by someone else, whose name was not given; thereupon the witness, without a warrant of arrest or a search warrant, went to the home of Ernest Polk and went on his premises near one of the windows of the room, wherein he afterwards found gambling was going on, and there listened and heard persons talking and cards falling on a table; that he tried to see the game going on through the window, but was unable to do so; thereupon he took his walking cane, broke one of the panes of glass in the window, raised the shade and saw the game in progress, and saw that the appellants were the parties engaged in it. The appellants objected to the evidence of the constable on the ground of its incompetency. The court overruled the appellants' objection. There being no other evidence in the case, appellants thereupon requested the court to direct a verdict in their favor, which the court refused to do.

The question involved is the constitutionality of section 1235 of the Code of 1930, which follows: "It shall be the duty of the sheriff, coroner, justices, constables, and all other civil officers of the county, and of every police officer of any city, town or village, when they know or have reason to suspect any person to be guilty of a violation of the provisions of law in reference to gambling or gaming, or operating a bucket-shop or any business dealing in contracts commonly called 'futures,' to apprehend such person, with or without warrant, and bring him before some officer having jurisdiction thereof, and to appear and prosecute such offender; and for that purpose any such officer, if he know or have reason to believe that any gambling or gaming is being carried on in any house, room, or place, may lawfully break into the same with or without warning to, the persons, therein."

The statute provides for either an arrest or a search or both with or without a warrant therefor. The last clause of the statute authorizes the officer, for the purposes of making the arrest, to break in and search the house, room, or place. Section 23 of the Constitution provides that the people shall be secure in their persons, houses, and possessions from unreasonable seizures or search, and that 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.

The question is, What is an unreasonable arrest? That question is answered by the decisions of this court in Orick v. State, 140 Miss. 184, 105 So. 465, 41 A. L. R. 1129; Iupe v. State, 140 Miss. 279, 105 So. 520; and Butler v. State, 135 Miss. 885, 101 So. 193. It was held in the Orick case that section 23 of the Constitution prohibits the arrest of a person, without a warrant, for a mere misdemeanor not committed in the presence of the officer, and that evidence obtained by means of an unlawful arrest is not admissible.

In the Butler case the policeman making the arrest had no warrant for the arrest, and did not know at the time of making it that the defendant was committing a crime in his presence although he suspected that he was. When the policeman undertook to arrest the defendant, the latter fled. In his flight the policeman shot at him. When the shot was fired, the defendant...