Summary
In King v. State, 151 Miss. 580, 118 So. 413 (1928), the sheriff had a search warrant to search the premises of the local bootlegger.
Summary of this case from Rooks v. StateOpinion
No. 27352.
October 15, 1928.
1. INTOXICATING LIQUORS. Where sheriff halting automobile did not believe, and had no reason to believe, defendant was transporting liquor, there was no probable cause for search without warrant ( Hemingway's Code 1927, section 2239).
Where sheriff did not believe or have reason to believe that liquor was being transported in automobile by defendant before he halted automobile and made search without search warrant, but his suspicion was aroused only after he discovered another person was accompanying defendant, there was no probable cause for search of defendant's automobile under Laws 1924, chapter 244 (Hemingway's Code 1927, section 2239).
2. CRIMINAL LAW. Where there was no probable cause for search of defendant's automobile without warrant, evidence procured by search was inadmissible ( Hemingway's Code 1927, section 2239).
Where there was no probable cause for search of defendant's automobile without search warrant, under Laws 1924, chapter 244 (Hemingway's Code 1927, section 2239), evidence procured by unlawful search of automobile was inadmissible in liquor prosecution.
3. CRIMINAL LAW. Where evidence of defendant's guilt of possessing liquor was secured by unlawful search, peremptory instruction should have been given.
Where all evidence upon which defendant was convicted of possessing intoxicating liquor was secured by an unlawful search, peremptory instruction requested should have been given.
APPEAL from circuit court of Scott county; HON. G.E. WILSON, Judge.
Frank F. Mize and Colbert Dudley, for appellant.
It has been held by this court in several cases that before an officer can search a car for intoxicating liquor, he must have probable cause for making the search; that an officer must have reasons to believe and believe upon information that a party has liquor in his car before he can make a search. Hamilton v. State, 115 So. 427; Sellers et al. v. Lofton, 116 So. 1044.
Appellant submits that the only instruction requested by the defendant, which was a peremptory instruction, should have been given, and the action of the court in refusing it was error, for the reason that there was no competent evidence whatever upon which the jury could have found a verdict of guilty.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
In view of the case of McNutt v. State, 108 So. 721, 143 Miss. 347, there must be probable cause or the officers must have reason to believe that intoxicating liquor is being transported, and if not the search without a warrant is unlawful. The probable cause must rise higher than mere belief on the part of the officers. The facts in the case at bar demonstrate clearly that the officers acted on mere belief which does not amount to such probable cause as would justify a lawful search without a warrant. See, also, Hamilton v. State, 115 So. 427.
Appellant, Ira King, was convicted and sentenced in the circuit court of Scott county of having more than one quart of intoxicating liquor in his possession. The conviction rests upon the testimony of the sheriff and his deputies, who, without a search warrant, searched his car and arrested him. The evidence as a whole shows these salient facts: That the sheriff had reliable information that Carpenter had liquor, and that cars were "coming from Carpenter's after liquor," that the sheriff further said that he received his information as to the liquor at Carpenter's from a reliable man, and that he believed the information to be correct because the man was worthy of belief.
From the testimony it seems that the sheriff's information was that people were going to and from Carpenter's house for liquor. The sheriff made affidavit, and procured a search warrant to search the place of Carpenter. He and his deputies started in the direction of Carpenter's home, and, within less than a mile of Carpenter's they met the defendant and another in a car. The sheriff got out of his car and halted the defendant, who was driving the car, and, after greeting, directed him to move on, when he saw that the man seated by King in the car was McClanehan. Then the sheriff testified, "I happened to see who was sitting by him, I saw it was McClanehan, and I says to myself, `They have got liquor,' and I opened the back curtain as the car pulled by me." Then he proceeded to say that he saw a ten gallon keg in the car which he afterwards discovered contained whisky.
The sheriff frankly stated that at the time he halted King he had no information that King was in that vicinity, that he had no information that King had liquor in his possession, and that his suspicion was aroused only by the fact that McClanehan accompanied King.
Under these facts there was no probable cause for the search of defendant's car, and the evidence procured by the unlawful search of the car was inadmissible in evidence. See Laws 1924, chapter 244 (Hemingway's 1927 Code, section 2239).
There is nothing in this case to show that the sheriff believed, or had reason to believe, that liquor was being transported in an automobile by the defendant, before he halted the car and made the search; and he had no search warrant therefor.
The appellant requested a peremptory instruction, and, as all the evidence upon which he was convicted was secured by an unlawful search, the instruction should have been given. See Sellers v. Lofton (Miss.), 116 So. 104; Hamilton v. State (Miss.), 115 So. 427; McNutt v. State, 143 Miss. 347, 108 So. 721.
Reversed and remanded.