Sellers v. Lofton

• Decision Date: 19 March 1928
• Docket Number: 27005
• Court: Mississippi Supreme Court
• Parties: SELLERS et al. v. LOFTON. [*]

116 So. 104

149 Miss. 849

SELLERS et al. v. LOFTON. ^[*]

No. 27005

Supreme Court of Mississippi

March 19, 1928

Division B

1. SEARCHES AND SEIZURES. Affidavit for search warrant must be based on information and belief possessed at time of making affidavit.

In order to justify issuance of a search warrant, affidavit therefor must be based on information and belief, of which the affiant was possessed at time of making the affidavit and search cannot be justified on information of affiant obtained during the search.

2. INTOXICATING LIQUORS. Officer making search without warrant must before search is begun have reason to believe, and must believe, law was being violated (Laws 1925, chapter 244 section 2).

Where a search is made without a warrant under the authority of Laws 1924, chapter 244, section 2 (Hemingway's Code 1927 section 2239), officer making the search must before the search is begun have reason to believe, and must believe, that the law is being violated, and no part of evidence of probable cause coming to knowledge of officer as result of search can have any bearing on such question.

3. INTOXICATING LIQUORS. Officers' search of automobile for intoxicating liquor without warrant on ground occupants were driving late and laughing and talking loud held without probable cause (Laws 1924, chapter 244, section 2).

Search of automobile for intoxicating liquor by officers without a warrant pursuant to Laws 1924, chapter 244, section 2 (Hemingway's Code 1927, section 2239), on ground that occupants were driving on streets late at night and were laughing and talking loud, held to have been made without probable cause.

4. INTOXICATING LIQUORS. Instruction that officers making joint search without warrant were each liable for acts of other held not erroneous (Laws 1924, chapter 244, section 2).

In action against officers and sureties for damages alleged to have resulted from an unlawful search without a warrant pursuant to Laws 1924, chapter 244, section 2 (Hemingway's Code 1927, section 2239), instruction making each officer liable for acts of other in making unlawful search and for what followed as a result of search held not erroneous where officers were acting jointly.

5. TRIAL. Requested instructions in direct conflict with others given held properly refused.

Requested instructions which were in direct conflict with instructions given for other party held properly refused.

6. TRIAL. Instruction that officers sued for unlawful search could arrest plaintiff if drunk held properly refused, in view of instruction given.

In action against officers for damages alleged to have resulted from unlawful search of automobile for intoxicating liquor, refusal of instruction that officers had right to arrest plaintiff if they believed him drunk held not erroneous, in view of instruction given stating that plaintiff was subject to arrest and imprisonment in case he was drunk.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Jones county, Second district, HON. R. S. HALL, Judge.

Action by Ben Lofton against W. E. Sellers and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Affirmed.

Welch & Cooper, for appellants.

Collins & Collins, for appellee.

Argued orally by Ellis B. Cooper, for appellants, and Jeff Collins, for appellee.

OPINION

ANDERSON, J.

Appellee brought this action in the circuit court of the Second district of Jones county, against appellants Sellers and Owen, two policemen of the city of Laurel, and the sureties on their official bonds, to recover damages claimed to have been suffered by appellee at their hands, resulting from an unlawful search of appellee's automobile by them for intoxicating liquor, and for an assault and battery committed by them on appellee during such search, and recovered a verdict and judgment, from which judgment appellants prosecute this appeal. (For convenience, Sellers and Owen will be referred to as appellants.)

At the instance of appellee, the court directed the jury to return a verdict in his favor. That action of the court is assigned and argued as error. The determination of that question turns upon whether there was sufficient evidence to sustain the action of appellants in searching appellee's automobile without having first obtained a search warrant for that purpose, for it was undisputed in the evidence that they had no search warrant.

Section 2 of chapter 244, Laws of 1924 (Hemingway's Code 1927, section 2239), provides, among other things, that it shall be the duty of any policeman in a municipality, "who has reason to believe and does believe" that intoxicating liquor is being transported in violation of law in any automobile, forthwith to make a search of such automobile, and to seize any intoxicating liquor found therein being possessed or transported in violation of law, and to at once arrest the person or persons in possession or control thereof, and that such officer, proceeding in good faith, shall not be liable either civilly or criminally for such a search and seizure without a search warrant.

The trial court, in directing a verdict for appellee on the question of liability, necessarily held that appellants, in making the search of appellee's car without a search warrant, acted without "probable cause." The definition of probable cause given in the statute is that the officer making the search must have reason to believe, and does believe, that there is being possessed or transported, in the automobile to be searched, intoxicating liquor, in violation of law.

The facts and circumstances which are relied on as constituting probable cause for the search were testified to by appellants, whose evidence was in substantial accord. They were as follows: The search of the car took place within the corporate limits of the city of Laurel, between eleven and twelve o'clock at night. The search was made by appellants. Appellee, with his three companions, in appellee's car, was returning to Laurel from Tucker's Crossing. They were laughing and talking loud, and the car they were in was zigzagging. On the night of the search appellants were policing that section of the city together. They observed appellee's car, its manner of proceeding and the fact that the occupants of the car were talking loud. Appellants were in an automobile. They followed appellee's car a short distance, when appellee's car stopped. Appellants then drove their car a short distance in front of appellee's car, and stopped. The point where appellee's car stopped was in front of a negro house on a much-traveled street in Laurel. Appellants testified that somewhere, before they began to search appellee's car, they smelled whisky--they did not know where or from what direction the smell came; that they proceeded to appellee's car, and searched it thoroughly, and found no intoxicating liquor therein; that appellee resented the search; that appellant Sellers told appellee to get in his car and go on home; that appellee declined to do this; that appellant Sellers then pushed appellee into his car, and that thereupon appellee threw out his hand and struck appellant in the chest; that appellant Sellers then struck appellee in the mouth with his fist. The evidence showed without conflict that this lick in the mouth cut an ugly gash in appellee's lip, loosening four or five of his teeth; that appellee was then arrested and taken to jail and locked up for half an hour. Appellants testified that when they reached appellee's car the latter was drunk, and the other...