Opinion
No. 32439.
February 1, 1937.
1. CRIMINAL LAW.
Evidence of federal officers who arrested defendant accused of unlawful possession of distillery held not inadmissible on ground that officers had no search warrant, since it was not shown that still was upon premises owned by defendant or that he had interest in such premises (Code 1930, sec. 1993).
2. SEARCHES AND SEIZURES.
Defendant must have some interest, at least to extent of right of possession, or else he cannot complain about search warrant.
3. INDICTMENT AND INFORMATION.
Where indictment charged that defendant willfully, unlawfully, and feloniously had a still in his possession, omission of word "willfully" in instruction defining offense was not fatal defect, in view of evidence conclusively showing that possession of still was willful, unlawful, and felonious (Code 1930, sec. 1993).
4. INTOXICATING LIQUORS.
Conviction for unlawful possession of distillery held proper, where proof was clear and convincing beyond a reasonable doubt and was entirely undisputed, and nothing suggested lawful use of distillery or its possession for any other purpose than distilling of whisky (Code 1930, sec. 1993).
5. CRIMINAL LAW.
In passing upon ruling of lower court, Supreme Court will look to record, and if, in light thereof, no harm appears to have resulted from ruling complained of, judgment will be affirmed although ruling may have been erroneous when made.
6. CRIMINAL LAW.
Judgment will not be reversed for error, except where rights of complaining party are thereby prejudiced.
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
Amos McLemore was convicted for unlawfully possessing a distillery, and he appeals. Affirmed.
Earle L. Wingo, of Hattiesburg, for appellant.
Since the indictment embraces the language of the statute and charges that the possession of the still was done "wilfully, unlawfully and feloniously," we submit that the instruction granted to the state should have likewise been in the same language as the indictment and the statute. A reading of the instruction shows that it does not follow the indictment and is, therefore, wholly insufficient.
The defendant did not ask for and, therefore, did not receive any instructions whatever; and, therefore, the law of the case was submitted to the jury solely by the language contained in the single instruction requested by and granted to the state as herein complained of. We submit that the granting of this instruction, and the same being the only instruction granted to the jury, was reversible so to do because the jury was entitled to know just what proof was required on the part of the state before the appellant could be properly convicted.
The testimony in the case shows that the only witnesses in the case were deputy U.S. marshalls; that they searched the premises of the appellant at a time when they had no warrant for his arrest or for the arrest of any person upon the premises, and at a time when they had no search warrant to legally go upon such premises. This being true, the actions of the state's witnesses were illegal and unlawful and, therefore, incompetent and inadmissible. The record shows that timely and strenuous objections were made to the introduction of the testimony of these two officers, but the objections were of no avail because the court promptly overruled all of them and virtually held that no search warrant was required.
It has long been a settled law of Mississippi that before an officer can lawfully go upon the premises of a private citizen, he must have a search warrant for the arrest of some person upon the premises or he must have a search warrant giving him the privilege of searching such premises; and that where an officer goes upon the premises of a private citizen and searches same without a search warrant, such is illegal and such testimony in respect thereto is incompetent and inadmissible.
Tucker v. State, 90 So. 845; Butler v. State, 93 So. 93; Cantebury v. State, 170 So. 672.
After a reading of the record in the case we are assured that the court will hold that the testimony was wholly insufficient to sustain the charge.
Medlin v. State, 108 So. 177; Ray v. State, 168 So. 617.
Webb M. Mize, Assistant Attorney-General, for the state.
The indictment charged the appellant with wilfully, unlawfully and feloniously having in his possession a distillery, commonly called a still. The only instruction in the case authorized a conviction, if the jury believed beyond a reasonable doubt from the evidence that the defendant, jointly with another, feloniously possessed a distillery.
The instruction in this case is sufficient.
Bufkin v. State, 134 Miss. 1, 98 So. 452; Bradley v. State, 134 Miss. 20, 98 So. 458.
The appellant also contends that he did not ask for and did not receive any instructions and that the law of the case was submitted solely on the one instruction granted the state. This instruction is correct upon the above authorities and there was no error because the court did not grant additional instructions, as other instructions were not requested.
Davis v. State, 173 Miss. 283, 163 So. 391; Edwards v. State, 95 Miss. 148, 59 So. 620.
It was unnecessary for the two officers to have a warrant for the arrest of the appellant or to have a search warrant for a search of the premises. The testimony showed that the officers had information that a still was being operated by appellant. The officers had seen the still previously. They had seen the mash and from their experience and training, they knew it would be ready for distillation in forty-eight hours. Therefore, they had cause for a search and for an arrest and it was entirely unnecessary to have a warrant. The facts that they acted on were more than apparent and were sufficient and conclusive in showing that liquor was being made by the still. Therefore, it was absolutely unnecessary to have a search warrant.
Holmes v. State, 146 Miss. 351, 111 So. 860; Smith v. State, 160 Miss. 56, 133 So. 240.
The testimony was not only sufficient to sustain the charge but it was conclusive.
Osborne v. State, 146 Miss. 718, 111 So. 834.
Appellant, Amos McLemore, was jointly indicted with Leroy McLemore for the unlawful possession of a distillery, at the April, 1936, term of the Forrest county circuit court; the indictment charging as follows: "That Leroy McLemore and Amos McLemore, on the 20 day of April, 1936, in Forrest County aforesaid, did then and there, willfully, unlawfully and feloniously have in their possession a distillery commonly called a still, against the peace and dignity of the State of Mississippi," and on being convicted was sentenced to serve a term of two years in the State Penitentiary, from which he appeals here.
The evidence against appellant was obtained by agents of the Federal Government. They, having previously ascertained the location of a still, went up north of Hattiesburg, where the still was located, about 5:45 in the morning, to some point in the edge of a swamp on Leaf river, and saw there Leroy McLemore and another bring certain parts of a still. They again went to the place and found some mash almost ready to run. They again went to the place, on the day the appellant was arrested, and found a regular still for distilling whisky set up, and Leroy McLemore was building a fire around it, but they did not see any vessels in which the whisky, when made, was to be placed. They arrested Leroy McLemore, and one of the federal officers went to a point above the still, and between that and the McLemore residence, where there was a path leading to the still, and secreted himself. Shortly thereafter, Amos McLemore appeared with an empty keg on his shoulder and was walking toward the still; the federal officer followed him, and when appellant noticed this, he threw the keg down, whereupon the officer told him to go on to the still. When they reached the still where Leroy McLemore and the other person were, Leroy McLemore was asked to whom the still belonged. He stated that it belonged to him and the appellant. He was then asked upon whose land it was situated, and he stated that he did not know; that the McLemore estate had not been divided. These statements were made in the presence of appellant, were not denied, and thereafter appellant confessed ownership of the still, and requested the federal officers not to talk about the matter, as he (appellant) had a job on the G. S.I. Railroad and feared he would lose it, and he also asked that they be taken to some jail other than that at Hattiesburg. The officers refused to do this, and Leroy McLemore and the appellant were placed in jail at Hattiesburg.
The appellant offered no evidence at all, and asked for no instructions, and the court admitted the above stated evidence.
There was objection to this evidence on the ground that no search warrant had been issued, and the testimony showed that the officers did not have a search warrant. This objection is without merit for the reason that it was not shown that the still was upon premises owned by the appellant, or that he had any interest in the premises searched. A defendant must have some interest, at least to the extent of the right of possession, or else he cannot complain of the absence of a search warrant. Lee v. Oxford, 134 Miss. 647, 99 So. 509; Pickett v. State, 135 Miss. 386, 124 So. 364; Cofer v. State, 158 Miss. 493, 130 So. 511; Polk v. State, 161 Miss. 506, 142 So. 480.
As above stated, the indictment charged that the appellant willfully, unlawfully, and feloniously had a still in his possession. The prosecution was under section 1993, Code of 1930, which provides that it shall be unlawful for any person, firm, or corporation to own or control or have in possession a still, or any integral part thereof.
Conceding, but not deciding, that the indictment properly used the word "willfully," it is not a fatal defect to omit this word in an instruction defining the offense, where the evidence conclusively shows that the possession of a still was willful, unlawful, and felonious.
Under the evidence in this case, the jury could not have rendered any other verdict than guilty, because the proof was clear and convincing, beyond reasonable doubt, being entirely undisputed, and there is nothing at all in the record which suggests any lawful use, or possession for any other purpose than the distilling of whisky.
In passing upon a ruling of the lower court, the Supreme Court will look to the record, and if, in the light thereof, no harm appears to have resulted from the ruling complained of, the judgment will be affirmed, although the ruling may have been erroneous when made. Planters' Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440.
Error without prejudice is no ground for reversal. Ladnier v. Ingram Day Lumber Co., 135 Miss. 632, 100 So. 369.
A judgment will not be reversed for error, except where the rights of the complaining party were thereby prejudiced. Gulf, M. N.R.R. Co. v. Willis, 171 Miss. 732, 157 So. 899, 158 So. 551. See other cases cited in Mississippi Digest, Vol. 2, Appeal and Error, 1025-1030.
The judgment of the court below will, therefore, be affirmed.
Affirmed.