Vaughn v. State

• Decision Date: 13 October 1924
• Docket Number: 24355
• Citation: 136 Miss. 314,101 So. 439
• Court: Mississippi Supreme Court
• Parties: VAUGHN v. STATE. [*]

101 So. 439

136 Miss. 314

VAUGHN v. STATE. ^[*]

No. 24355

Supreme Court of Mississippi

October 13, 1924

Division B

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

C. C Vaughn was convicted of the unlawful possession of intoxicating liquor, and he appeals. Reversed and defendant discharged.

Judgment reversed.

George H. Hill, for appellant.

I. This is simply a case where the officers did not have any search warrant to search appellant's car and therefore under Tucker v. State, 128 Miss. 211, 90 So. 845, and Owens v. State, 98 So. 235, this case should be reversed and appellant discharged. Also, see Butler v. State, 93 So. 3; State v. Patterson, 95 So. 96; Miller v. State, 93 So. 2.

II. The fact that the officers had a search warrant to search a car owned by some person other than the appellant did not authorize them to search appellant's car. Owens v State, 98 So. 233; Strangi v. State, 98 So. 340; Taylor v. State, 98 So. 459.

F. S. Harmon, Assistant Attorney-General, for the state.

The state insists that this case is clearly and plainly distinguishable and that the doctrine of the Tucker case and cases following same is here inapplicable. In the first place, officers here convicted the appellant on testimony secured before any unauthorized search was made by them. These officers had a right to conceal themselves on the side of the road. They had a right to rise as quickly or as slowly as they pleased. There is nothing in the record to indicate that they did any act which had the legal effect of putting the appellant in immediate fear of immediate bodily harm, so as to constitute an assault. On the other hand, the record shows simply that these officers suddenly rose up; that appellant saw them and their sudden appearance caused him to momentarily take his mind off the car which same went dead on the side of the hill.

Coming now to a still more important fact, namely, the voluntary act of appellant in seizing a wrench and breaking this two-gallon jug of liquor so that the contents poured on the ground in plain view of these officers who were then coming up to the car. This voluntary act of appellant enabled the officers to determine that this was intoxicating liquor through the senses of sight, smell and taste. The odor of the liquor which appellant voluntarily and affirmatively caused to escape into the road, was unmistakable; the color and appearance of said liquor was unmistakable and witness Mann swore that some of the same liquor which he sopped up from the road and thus tasted, showed unmistakably that it was intoxicating liquor. The officers had thus far committed no unauthorized act and had made no unlawful search. They had a right to be in the road and to breathe in the fumes of the whiskey. They had a right to be in the road and to see this liquor draining out of the car onto the ground, and witness Mann had a right, if he chose to stoop to it, to lap up this liquid out of the road and thus convince himself by the sense of taste that it was liquor. In all of this, no property of appellant was touched. No search of either appellant or of the car had been made. This being true, all of this vital and essential testimony was admissible and it was on the strength of this testimony that appellant was convicted.

It is our contention therefore, that the additional testimony relative to the search of the car, and the finding therein of the broken jug, while inadmissible did not constitute prejudicial error and does not therefore, justify a reversal of this cause. The verdict of the jury could not under any reasonable theory have been different if the inadmissible testimony had been excluded. The inadmissible testimony did not and could not reasonably have changed a verdict of not guilty into a verdict of guilty.

We turn now to another point which is even more important, namely the fact that the officers here testified to a crime being committed in their presence, having knowledge that a crime was being committed, before any search of the car commenced. The doctrine is too well settled to justify citation of authorities, that officers may testify as to crime committed in their presence and may arrest offenders for crime so committed. What is the situation here? These officers were in the public road where they had a right to be. Appellant seeing the officers, seized a wrench and broke this jug of liquor so that its contents by his own affirmative act, escaped into the public road. The officers by smelling same, seeing same, and tasting same in and on the public road where they had a right to be, had actual knowledge that a crime was being committed in their presence before they laid a single finger on this automobile. It is a crime in Mississippi to have liquor in possession. Appellant knowingly had said liquor in his possession and by his own act, he transferred this knowledge to the officers. The officers therefore, arrested appellant and seized his car because a crime was being committed in their presence, which crime they had knowledge of before any arrest, any search or any seizure took place. Having prior knowledge of the commission of a crime in their presence, the subsequent arrest, search and seizure were valid and could be testified to. We urge with all possible earnestness the validity of the argument here advanced before this court. It is submitted that the distinction drawn in this case is logical and sound and in affirming same for the reason here advanced, the...