Opinion
No. 29560.
December 7, 1931.
1. CRIMINAL LAW. Searches and seizures.
Evidence obtained through search by private individual of effects of accused's person held not unlawful, so as to render evidence obtained inadmissible (Constitution 1890, section 23).
2. CRIMINAL LAW.
Ruling admitting evidence obtained by search will not be reversed, where evidence does not show officer searched individual's effects or leaves question doubtful.
APPEAL from circuit court of Pike county; HON.E.J. SIMMONS, Judge.
Jas. A. Wiltshire, of Magnolia, for appellants.
It makes no difference what the motive of the night policeman might have been in going down there where the car was, but when the evidence disclosed that, in the course of the proceedings there, it developed that the officer made the search and found the liquor, this was an unlawful search and rendered the evidence inadmissible against the defendants.
King v. State, 118 So. 413.
It was reversible error for the court, in a case like this, close on the facts, and a very weak case, to refuse to give the instruction as follows: "The court instructs the jury for the defendants that their failure to take the stand in this case and testify shall not operate to their prejudice (and you as jurors should not indulge in any inference or presumption of guilt from their failure to testify).
We submit that giving the state the instruction "that you do not have to know the defendants are guilty, etc.," and the refusal of defendants' instruction on the presumption of innocence makes the error in refusing the above quoted instruction more pronounced and hurtful to the defendant.
Haynes v. State, 27 So. 601.
Eugene B. Ethridge, Assistant Attorney-General, of Jackson, for the State.
The admission of the evidence tending to show the possession of intoxicating liquor by appellants was proper and did not violate the prohibition against unreasonable searches.
Ross v. State, 140 Miss. 367.
The granting and refusal of the instructions by the court are not grounds for reversal.
In the instructions granted by the court the jury was told that the appellants were not required to do anything, but that the state must cause the jury to believe the appellants guilty beyond all reasonable doubt and to a moral certainty before a verdict of guilty would be warranted. This and other instructions fairly and sufficiently apprise the jury of the theory of presumption of innocence. This having been done, the appellant's complaint is not maintainable.
McGehee v. State, 138 Miss. 822; Frazier v. State, 141 Miss. 18; Borders v. State, 138 Miss. 788; Reeves v. State, 159 Miss. 498; Wiley v. State, 129 Miss. 196; Reynolds v. State, 136 Miss. 329; Waldrop v. State, 98 Miss. 567; Stubblefield v. State, 142 Miss. 787.
The appellants were convicted for the unlawful possession of intoxicating liquors, and from such conviction appealed here.
It appears that during November, 1930, the appellants were passing through the town of Osyka in Pike county, Mississippi, about 8 or 8:30 in the evening. Their route carried them past a corner drug store in which a number of young men of the community were assembled. Evans was driving the car, and, on approaching the drug store, the car was directed to cross a railroad crossing, traveling east. In attempting to go over this crossing, the driver failed to stay upon the passageway, and ran into a bank or obstruction. Seeing the predicament the car and the driver were in, some of the young men and also the night watchman of Osyka went over to the place where the appellants were standing to render assistance. These men pushed the car over the bank, and in doing so a bean hamper or crate was thrown out of the truck or car into the arms of some of the parties assisting the driver out of his place of trouble. The car proceeded a short distance, and the driver got out and returned to the bean hamper.
The evidence is conflicting as to who first went into the bean hamper; whether it was the night watchman or some of the young men, or whether it was one of the appellants. Anyway, the cover was removed from the hamper, and intoxicating liquors were taken therefrom. Some of the testimony shows that this was done by one of the appellants. It does not appear clearly whether the night watchman was a police officer or not, but at all events he had no search warrant.
When the cover was removed and the liquor exposed, the watchman arrested the appellants, and took charge of the liquor; there being two gallons of liquor in the bean hamper.
It is settled in this state that the acts of a private individual in wrongfully searching the effects of a person do not exclude the evidence obtained by such search. Hampton v. State, 132 Miss. 154, 96 So. 165, 166. In the trial below, the court, in overruling the motion to exclude the evidence and to grant a peremptory instruction, said: "It is plain that neither of the witnesses in this case are officers, the witness Williams and other witnesses except the witness Smith are young men, not officers, and whether the night watchman in the town of Osyka is an officer this court does not know. The court is of opinion that the suggestion that the contents of this hamper was discovered by a search is not clearly and certainly established. It is just as reasonable an inference from the proved facts that the discovered contents of the hamper was ascertained in a bona-fide effort to aid these men who were traveling and whose car had gone into a depression so that it could not be moved. It was in aiding these defendants to extricate themselves from the situation that revealed the presence there of liquor and not a search either of the car or the persons of defendants or anything connected with the defendants. Therefore the motion is overruled."
We find no error in the trial below that would warrant us in reversing the judgment; it is therefore affirmed.
Affirmed.