Smith v. State
| Decision Date | 17 December 1923 |
| Docket Number | 23381 |
| Citation | 133 Miss. 730,98 So. 344 |
| Court | Mississippi Supreme Court |
| Parties | SMITH v. STATE |
(Division A.) January 1, 1920
1. SEARCHES AND SEIZURES. Requirement of search warrant held not waived.
Where deputy sheriff, after having entered upon a search of a residence for intoxicating liquor without a search warrant stated to occupant that he believed he smelled some whisky and that he was going to hunt for it, the occupant did not waive the requirement of a search warrant, under Constitution 1890, section 23, by telling the officer, "all right you are welcome to find it if you can."
2. INTOXICATING LIQUORS. Rule as to waiver of requirement of search warrant stated.
An occupant is not required to expressly protest and object to the search of her premises without a search warrant, and will not be deemed to have waived the requirement of a warrant unless it clearly appears that she voluntarily permitted or expressly invited and agreed to the search, being cognizant of her rights in the premises.
3. CRIMINAL LAW. Evidence obtained by means of search without warrant inadmissible.
In liquor prosecution evidence obtained by means of a search of defendant's premises without a warrant required by Constitution 1890, section 23, is not admissible.
APPEAL from circuit court, of Rankin county, HON. G. E. WILSON, Judge.
Bertha Smith was convicted of having intoxicating liquor in her possession, and she appeals. Reversed and remanded.
Judgment reversed and cause remanded.
W. E. McIntyre, for appellant.
The witness, Jordan Lindsey, testified over the objections of the appellant, and his testimony was not excluded on motion of the appellant, defendant below, all of which was error. Jordan Lindsey was a deputy sheriff and he went to the home of this appellant without a search warrant and made the search.
The supreme court of Mississippi has so consistently held this error until we do not deem it necessary to cite authorities. To permit this verdict to stand would be to overrule the following cases in which it has been held to be error to permit the testimony of officers obtained by search and seizure, without a search warrant, to be introduced as evidence of guilt, viz: Tucker v. State, 128 Miss. 211, 90 So. 845; Faulk v. State, 127 Miss. 894, 90 So. 481; Williams v. State (Miss.), 92 So. 584; Miller v. State, (Miss.), 92 So. 2; Butler v. State (Miss.), 93 So. 3; Baskin v. State (Miss.), 92 So. 556; and Taylor v. State (Miss.), 93 So. 355.
The only testimony offered on the part of the state was that of Jordan Lindsey, a deputy sheriff, to which testimony due and timely objections were made.
This witness testified that he went to the home of the appellant, and that after searching her premises without having first obtained a search warrant, he found a very small quantity of liquid in a cupboard; that the same was in a glass; that upon picking the glass up, it fell and was broken and the contents spilled; that he never tasted the liquid; that only by smelling of it did he determine that it was "intoxicating liquor;" that several other persons were in and around this house, and that some other family lived in the house, other than the appellant. The witness further testified that he has never tasted white lightning in his life. The appellant testified in her own behalf that she knew nothing of this being liquor, and that it was not her liquor, if such it was. The witness, Lindsey, evidenced every method in the power of himself to lay the blame for this liquid on this woman, and although he had never tasted any moonshine whisky went so far as to testify on direct examination that it was "intoxicating liquor," but on cross-examination he was not so strong. Also on direct examination he would lead the jury to believe that it was the property of the defendant, appellant here, but on cross-examination, he said that he could not say to whom it belonged. We think the testimony wholly insufficient to sustain a conviction, especially since the defendant took the stand and denied any knowledge of it being there, and that it was never in her possession. We, therefore, submit to this court, first, that it was error to permit the witness, Lindsey, to testify about evidence gained by him through an unlawful search of the premises of the defendant; second, that the testimony fails to show that the liquid was intoxicating liquor.
S. C. Broom, Assistant Attorney-General for the state.
There are only two questions involved in this case that are entitled to any consideration. It is admitted that the officer had no search warrant to make the search and it is contended by the appellant that under the rule laid down in Tucker v. State, 128 Miss. 211; Faulk v. State, 127 Miss. 894; Williams v. State, 92 So. 584; Miller v. State, 93 So. 2; Butler v. State, 93 So. 3; Baskin v. State, 92 So. 556; and Taylor v. State, 93 So. 355, that the evidence thus obtained was inadmissible and should not have been submitted to the jury.
We are, of course, familiar with the rule laid down in the cases above cited. But it will be observed that in this case the defendant expressly waived any right that she might have in the premises, and invited the search. In the testimony of Bertha Smith we find that she does not deny the statement on the part of the state's witness. We find that his statement with reference to his invitation to search the premises is uncontradicted, therefore it must be true that she invited him to search the premises. This being true, it brings the case clearly within the rule as laid down in Baskin v. State, 92 So. 556, where the court held in substance: "Where a search in which distilling apparatus was discovered was not only consented to but expressly invited by defendant, no search warrant being required."
Inasmuch as there is absolutely no conflict in the testimony on this proposition, we confidently submit that there is no merit in the contention that this evidence was inadmissible, because there was no search warrant.
The next proposition to be considered is, Was the evidence sufficient to warrant a conviction? The evidence discloses that the officer went to the safe in the corner of the room and found a small tumbler about two-thirds full of white lightning. This was in the safe in the kitchen at her home, and she was present, and by his side when he found it, and he said: "Bertha, what is this?", and she said "It is liquor," and he said: "Where did you get that?", and she smiled and said, "I reckon I better not tell you."
It will be observed that in the testimony of the defendant she does not deny this. She did testify that she had no recollection of having smiled and said, "I reckon I better not tell you."
This was the evidence submitted to the jury and they believed it; they were convinced beyond every reasonable doubt that the defendant knowingly had in her possession intoxicating liquor, and accordingly found her guilty as charged.
We therefore submit that under the rule as laid down in Baskin v. State, supra, that there was no error in law in permitting the state's witness to testify as to liquor found without a search warrant when the search was invited, and that the evidence, if believed, was amply sufficient to warrant the verdict returned by the jury.
Bertha Smith appeals from a conviction of having intoxicating liquor in her possession.
The record shows a case of this kind. A deputy sheriff, in search of intoxicating liquors, entered the residence of appellant at Brandon, and, without having a search warrant, proceeded to investigate and search the premises for intoxicating liquor. After the officer began his quest for liquor he said to appellant that he "believed he smelled some whisky in there and that he was going to hunt for it;" whereupon appellant said to him, "All right, you are welcome to find it if you can." The officer then proceeded further to search the room, and finally found a goblet about two-thirds full of liquor which he claimed was intoxicating liquor. In his effort to satisfy himself that it was intoxicating liquor he dropped the goblet upon the floor and broke it. At the trial he swore he knew the liquor was intoxicating because it smelled like...
To continue reading
Request your trial
-
Moore v. State
...778, 93 So. 3 (Automobile); Taylor v. State, 129 Miss. 815, 93 So. 355; State v. Patterson, 95. So. 96; Owens v. State, 98 So. 233; Smith v. State, 98 So. 344; Regnall v. State, 98 So. 444; Taylor v. State, 98 So. 459; Falkner v. State, supra; City of Jackson v. Howard, 99 So. 497; Vaughn v......
-
Johnson v. State
... ... Ms. Grogan was there at the time, and Ms. Shadow did not see anyone else in the store. Kevin Bartley testified he went into the store at about the same time and Mrs. Grogan waited on him. He did not see appellant in the store ... Herbert Smith entered the Super Stop prior to 8:30 that morning to buy beer for an elderly friend, who lived across the street. He identified appellant as the person who waited on him. Smith noticed that appellant had an orange Super Stop jacket draped over his right shoulder. There was blood on the jacket ... ...
-
Orick v. State
...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, 99 501; Cuevas v. Gulfport, 134 Miss. 644, 99 So. 503, Taylor v. State, 134 Miss. 110, 98......
-
Parkinson v. State
... ... question and settled this point. Rignall v. State, ... 98 So. 444, 134 Miss. 169; Miller v. State, 129 ... Miss. 774, 93 So. 26; Owen v. State, 98 So. 233; ... Rignall v. State, 98 So. 444, 134 Miss. 169; ... Taylor v. State, 98 So. 459; Smith v. State, 98 So ... 344, 133 Miss. 730 ... This ... appellant, of course, has a perfect right to object to the ... unlawful search of his farm, as was done in this case, and ... the knowledge and information obtained in finding and seizing ... the still to be used against him on a ... ...