Smith v. State

• Decision Date: 30 March 1931
• Docket Number: 29237,29236
• Citation: 133 So. 240,160 Miss. 56
• Court: Mississippi Supreme Court
• Parties: SMITH et al. v. STATE

133 So. 240

160 Miss. 56

SMITH et al. v. STATE

Nos. 29236, 29237

Supreme Court of Mississippi

March 30, 1931

Division A

1. INTOXICATING LIQUORS. Probable cause to search automobile for liquor exists if apparent facts are sufficient to lead reasonably discreet and prudent man to believe liquor is illegally possessed in automobile.

It is not necessary to establish probable cause that arresting officer should have had before him legal evidence of suspected illegal act.

2. INTOXICATING LIQUORS.

Deputy sheriff's search of automobile on information by sheriff was act of sheriff, whether or not sheriff was present.

3. CRIMINAL LAW.

Evidence held insufficient to establish probable cause for search of automobile without warrant, and therefore evidence obtained was inadmissible.

4. INTOXICATING LIQUORS.

Liquor search begins when officers seek to halt automobile while driving in their own car and continues while officers are in pursuit.

HON. E J. SIMMONS, Judge.

APPEAL from circuit court of Pike county, HON. E. J. SIMMONS, Judge.

John B Smith and another were convicted of unlawfully having intoxicating liquor in their possession, and they appeal. Reversed, and defendants discharged.

Reversed and appellants discharged.

Jas. A. Wiltshire, of Magnolia, and E. C. Barlow, of Brookhaven, for appellants.

The officers had no definite information as to appellants. They merely state that they had information on some negroes driving a Chevrolet coach, bearing a Lincoln county tag.

Before a sheriff can search an automobile for intoxicating liquors, without a search warrant, he must have information amounting to probable cause, before the search, that the automobile contains such intoxicating liquors.

Lenoir v. State, 132 So. 325; Ford v. City of Jackson, 153 Miss. 616, 121 So. 278.

Jas. A. Wiltshire, of Magnolia, for appellant.

As the chase had begun before the liquor was discovered, any evidence obtained by the illegal chase, search and seizure was inadmissible.

Ford v. City of Jackson, 121 So. 278; Buttler v. State, 122 So. 398.

The defendant was entitled to have the sheriff disclose the information claimed, on which a search was authorized without a warrant.

King v. State, 118 So. 314.

Edwin R. Holmes, Assistant Attorney-General for the state.

There was in realty no search as the testimony shows that while the officers were pursuing the car twelve gallon jugs of whiskey were thrown out of the car by appellants. The officers were able to identify the contents of these jugs as intoxicating liquor without the necessity of instituting a search. The whiskey was in appellant's possession and the officers saw it in their possession at the time they broke the jugs containing the whiskey. There was no need to search the car to find the whiskey which had already been thrown out of the car. This alone is sufficient to convict the appellants.

Schillings v. State, 151 Miss. 361; Farmer v. State, 150 Miss. 776; Smith v. State, 144 Miss. 872; Mitchell v. State, 129 Miss. 440.

The fact that appellants threw jars of whiskey out of the car as the officers were chasing their car was sufficient in itself to constitute probable cause for searching the car.

Eady v. State, 153 Miss. 691; Goodman v. State, 130 So. 285.

OPINION

McGowen, J.

Smith and Stephens appealed from a judgment of the circuit court wherein they were convicted by a jury of unlawfully having intoxicating liquor in their possession.

The conviction was had upon testimony obtained by the sheriff of Pike county and his three deputies. The evidence was objected to on the ground that the state had not shown probable cause for the search. The officers of the law had no search warrant.

The following facts are essential to a decision of the case. On the 24th of September, 1930, E. T. Suddeth and C. A. Simmons, being deputy sheriffs of Pike county, were carrying a prisoner to Hammond, Louisiana, and at Tangipahoa, Louisiana, these deputies saw the two appellants driving a Chevrolet car. The deputies were going south; the appellants were driving north. The deputies completed their journey and returned to Magnolia, telephoned the sheriff, Ellzey, that the negroes were en route, and called on him to go with them to Osyka and catch the negroes. The sheriff, accompanied by Brent, his deputy, and these two deputies, proceeded to Osyka in the nighttime, and when the officers reached the railroad crossing the appellants saw them and turned back, the officers tried to stop them, and when the officers were recognized, the appellants fled in the car. The officers pursued them, and then the occupants of the car began throwing gallon jugs of whisky therefrom. They had twelve gallons of whisky in gallon containers, eight of which were broken and four of which were not broken. This evidence, together with the whisky and containers, was offered and permitted by the court to go to the jury over the objection of the appellants.

On the question of probable cause, Deputy Sheriff Suddeth testified that on that day Sheriff Ellzey had informed him that these two appellants would pass through Pike county with whisky. There is reference to a letter from the...