Quan v. State

• Decision Date: 15 May 1939
• Docket Number: 33480
• Citation: 188 So. 568,185 Miss. 513
• Court: Mississippi Supreme Court
• Parties: QUAN v. STATE

188 So. 568

185 Miss. 513

QUAN v. STATE

No. 33480

Supreme Court of Mississippi, Division A

May 15, 1939

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

S. C Quan was convicted of knowingly receiving stolen goods, and he appeals. Affirmed.

Affirmed.

Murphy & Wadlington, of Belzoni, Barbour & Barbour, of Yazoo City and Thos. H. Watkins, of Jackson, for appellant.

The lower court erred in refusing to grant the peremptory instruction requested by the appellant at the conclusion of all of the evidence because: (1) the only testimony on which the state could have possibly gone to the jury was the alleged confessions which the undisputed evidence shows were not freely and voluntarily made; (2) the state could not go to the jury without the evidence obtained as a result of an illegal and unlawful search of the appellant's premises (3) assuming that there was sufficient evidence to convict the appellant for knowingly receiving stolen property, the peremptory instruction should have been granted because the commission of the larceny by the appellant was not negatived by the state.

Bartee v. State, 180 Miss. 141, 177 So. 355.

We believe the correct rule to be that a confession, to be competent, must be absolutely voluntary and this court has on numerous occasions pointed out that if same is induced by fear, although there were no spoken threats, the confession is rendered involuntary because fear which takes away a man's freedom of expression may arise solely from the conditions and circumstances surrounding him at the time.

Johnson v. State, 107 Miss. 196, 165 So. 218, 51 L. R. A. (N. S.) 1183; White v. State, 129 Miss. 182, 91 So. 903, 24 A. L. R. 699; Whip v. State, 143 Miss. 757, 109 So. 697; Fisher v. State, 145 Miss. 116, 110 So. 361.

This court has recognized that a confession may be involuntary merely because of the nature of the conditions and circumstances surrounding the confessor. In this case we find a man of foreign birth, at his home, when he is suddenly aroused at midnight by five armed men who demand the right to immediately search his premises. His small children are very frightened and run to the home of his neighbor. His wife, in a critical condition, becomes very much upset. It was shown that physical violence had been used on at least one other person being questioned by the officers. Finally, the defendant was accused of having committed offenses other than that on which the officers were working at the time. We respectfully submit that it is an outrage for officers to obtain a so-called confession upon which conviction must rest under these circumstances.

The alleged confession made by the defendant during the search of his premises, having been clearly brought about by coercion and improper influences, there is a presumption that the same condition of mind existed when the second confession was made at the jail, shortly afterwards. In order for the second confession to be admissible, the state must have shown that the influences which brought about the first was fully removed at the time of the second. It is clear from this record that the alleged second confession was, also, invalid.

Jones v. State, 133 Miss. 684, 98 So. 150; Boudreaux v. State, 175 Miss. 625, 168 So. 621.

We respectfully submit that the evidence obtained by the officers as a result of the search of defendant's premises, at midnight, March 11th, was illegal and unlawful and that the evidence obtained thereby, including the alleged confession of the defendant, should not have been admitted in evidence.

The admission of evidence obtained by the officers at the time of this unlawful intrusion in the defendant's home was a flagrant violation of his rights under section 23 of the Constitution of the State of Mississippi.

The statutes authorizing searches and seizures are to be strictly construed against the state and a material deficiency in the affidavit or warrant will render the warrant void.

Turner v. State, 133 Miss. 738, 98 So. 240; State v. Watson, 133 Miss. 796, 98 So. 241.

The affidavit and the search warrant must specifically designate the place or places to be searched and the person or thing to be seized.

Miller v. State, 129 Miss. 774, 93 So. 2; Smith v. State, 133 Miss. 730, 98 So. 344; Owens v. State, 133 Miss. 753, 98 So. 233; State v. Watson, 133 Miss. 796, 98 So. 241; Loeb v. State, 133 Miss. 883, 98 So. 449; Fatimo v. State, 134 Miss. 175, 98 So. 537; Falkner v. State, 134 Miss. 253, 98 So. 691; Butler v. State, 135 Miss. 885, 101 So. 193; Spears v. State, 99 So. 361; Sanders v. State, 141 Miss. 615, 106 So. 822; Webb v. Sardis, 143 Miss. 92, 108 So. 442.

Evidence procured unlawfully by an officer is inadmissible in evidence.

Tucker v. State, 128 Miss. 211, 90 So. 845; 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; Strangi v. State, 134 Miss. 31, 98 So. 340; Matthews v. State, 134 Miss. 807, 100 So. 18; Morton v. State, 136 Miss. 284, 101 So. 379; Deaton v. State, 137 Miss. 164, 102 So. 175; Borders v. State, 138 Miss. 788, 104 So. 145; Spears v. State, 99 So. 361; Orick v. State, 140 Miss. 184, 105 So. 465; Harrell v. State, 140 Miss. 737, 106 So. 268; Tucker v. State, 128 Miss. 211, 90 So. 845.

Assuming for the sake of argument that there was sufficient competent evidence upon which the state could go to the jury in this case as to whether the defendant was guilty of having knowingly received stolen property, the state's case wholly fails because it did not negative the commission of the larceny itself by the appellant.

Sanford v. State, 155 Miss. 295, 124 So. 353.

It was error for the lower court to permit the state to show the conviction of Frank Adams and for the state to show statements made by Frank Adams without legally accounting for his absence as a witness.

Sanford v. State, 155 Miss. 295; Kirby v. U.S. 43 L.Ed. 890.

The lower court erred in allowing the state to offer evidence over the objection of appellant as to the guilt of appellant of other offenses than that for which he was being tried.

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

A great deal of testimony was heard by the court at the preliminary inquiry into the admissibility of this confession. As in most cases where a preliminary inquiry is held, there was evidence to sustain the competency of the confession, as well as evidence which tended to show that the confession was induced by a species of immunity, as well as by threats of personal violence. At the conclusion of this inquiry the court had to pass upon the weight of the evidence and determine for itself whether the confession should be admitted or not and it was admitted. This court has held that in such a situation the decision of a trial court will be sustained unless from the record it appears that his finding was contrary to the weight of the evidence.

Brown v. State, 142 Miss. 335, 102 So. 373; Stubbs v. State, 148 Miss. 764, 114 So. 827; Buckler v. State, 171 Miss. 353, 157 So. 353; Wohner v. State, 175 Miss. 428, 167 So. 622; Keeton v. State, 175 Miss. 631, 167 So. 68.

Particularly do we submit that the court did not decide this question against the manifest weight of the evidence in view of the fact that appellant volunteered to go with the officers and point out, and did go with them and point out, the stolen goods which he had sent from his store out to the home of the negro, Swan, for the purpose of ridding himself of the goods after the party from whom he bought them had been arrested for the burglary and larceny.

Later, and after the stolen goods had been found, appellant made a further statement in which he said that he had bought these stolen goods from Frank Adams about, or just before daylight on March 11th, and how much he had paid, or agreed to pay him for the goods. He also explained why he gathered up these goods and sent them out in the country from Belzoni, his reason being that under the circumstances the goods were "too hot" to handle with safety.

All the testimony relating to the circumstances under which this latter statement was made indicate without any sort of doubt that it was freely and voluntarily made within the legal meaning of that term.

It is said that the state's evidence did not negative the commission of the larceny...