Toliver v. State

• Decision Date: 31 December 1923
• Docket Number: 23419
• Citation: Toliver v. State, 133 Miss. 789, 98 So. 342 (Miss. 1923)
• Court: Mississippi Supreme Court
• Parties: TOLIVER v. STATE

98 So. 342

133 Miss. 789

TOLIVER v. STATE

No. 23419

Supreme Court of Mississippi

December 31, 1923

Division B

January 1, 1920

ARREST.Criminal law.Whisky found in automobile on lawful arrest of person riding therein admissible; what may be taken from person arrested for crime stated.

An officer, making an arrest of a person charged with crime, may search such person, and take from him such things as are connected with the crime for which he is arrested, or goods identifying the criminal, or weapons or other things that would aid the arrested person in making an escape, as such property as he may not under any circumstances lawfully possess.Where a person, when lawfully arrested, is riding in an automobile, which is under his control, and which could be used in making an escape, should opportunity present itself to make escape, the officer may take charge of and search the automobile, and may seize whisky found therein, and, on trial for violation of the law relating to intoxicating liquors evidence so found is admissible on such trial.

HON. W A. ALCORN, JR., judge.

APPEAL from circuit court, of Quitman county, HON W. A. ALCORN, JR., judge.

J. E Toliver was convicted of having in his possession more than one quart of intoxicating liquor, and he appeals.Affirmed.

Conviction affirmed.

M. E. Denton, for appellant.

In the case of Tucker v. State,128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and in other recent cases, this court has definitely settled the rule in Mississippi to be that where evidence of the possession of liquor or other demonstrative evidence is obtained by violation of the constitutional guaranty against unreasonable search, as provided in section 23and26 of the state Constitution, such evidence can in no way be used against a defendant.

The only exception to this rule is that one legally arrested may be searched by the officer, but the right of search in these exceptional cases extends only to the finding and seizure of articles found on the person or in the personal baggage of a defendant, which may be used by him as a means of escape from arrest, or which are connected with the crime for which the arrest is made, or which will serve to identify the criminal.State of W.Va. v. Wills,24 A. L. R. 1398, 91 W.Va. 659, 114 S.E. 261;Youman v. State of Ky., 13 A. L. A. 1303, 189 Ky. 152, 224 S.W. 860;State of N. J. v. Mausert, L. R. A. 1916C, 1014, note 1017;Getchell v. Page,18 L. R. A. (N. S.) 253, and note.

The court will find an interesting discussion of the question in the case of Amos v. U.S.255 U.S. 313, 65 L.Ed. 654, 41 S.Ct. 266, cited in the case of State v. Wills, on page 1408 of 24 A. L. R., and other numerous cases cited by the court.

It is a well-settled rule, that a defendant even in a bill of discovery, whether in aid of relief at law or equity, is not bound to discover anything which might subject him to a criminal prosecution or degrade him.4 Encyclopedia of Evidence, 708.

S. C. Broom, Assistant Attorney-General, for the state.

There are five assignments of error, but the theory of the defense is based upon one proposition and that is that it was an unlawful search because they had no search warrant for the automobile, and therefore evidence obtained by means of an unlawful search should have been suppressed under the rule as stated in the case of Tucker v. State,90 So. 845, and other cases since decided by this court adopting the rule as stated in the Tucker case.

Our theory of the case is that the evidence obtained on this occasion was admissible on either one or all three of the following propositions:

1.No search warrant is required for an automobile, and if it appear that the officer proceeded in good faith in making the search, evidence obtained by searching an automobile for intoxicating liquor without a search warrant is admissible on the trial of the case.

2.If the officer was armed with a legal warrant for the arrest of the appellant and while executing this warrant found intoxicating liquor in the possession of the appellant, he would be permitted to testify as to this fact even though he had no search warrant.

3.Even though a search warrant had been required, if the appellant testified in his own defense and admitted all of the things which were proved by the officers making the search, he thereby waived any constitutional right he may have had in the premises.

Section 2088, Hemingway's Code, is the statute under which we operate for searching for intoxicating liquor.This section only provides for a search warrant for a building or a particular room in the building.This statute became a law in 1908, long before the enactment of the bone-dry law, but as none other was enacted after the enactment of the bone-dry law, it was in effect reenacted, because it was not repealed and none other was enacted in its place.Therefore in considering this section, we must bear in mind that at the time of its enactment intoxicating liquor under some circumstances had the characteristics of property rights.No liquor is contraband, and beyond the pale of the law and there is no property right in it.

We must assume that when the bone-dry law was enacted the legislature evidently considered section 2088 of Hemingway's Code and must have deemed it entirely sufficient for the subsequent progressive legislation enacted on the subject.At any rate, no statutory provision has ever been made for a search warrant to search for intoxicating liquors elsewhere than in a building or a particular room in the building, and there is no statutory requirement for a search warrant to search an automobile for intoxicating liquor.

Our court has not passed on this identical proposition, therefore we must look elsewhere for an authority on the subject, and we find one directly in point in the case of Houck v State,140 N.E. 112, where the supreme court of Ohio was called upon to consider the question of the validity of a seizure of liquors from an automobile without a search warrant.The language of the Ohio statute is identical with section 26 of the National Prohibition Act, andsection 14 of article 1 of the Ohio Constitution is the same as the Fourth Amendment to the Constitution of the United States.The supreme court of Ohio held: "The Constitution does not forbid all searches and seizures, but, on the contrary, the inhibition is...