Opinion
No. 38938.
December 14, 1953.
1. Intoxicating liquors — search of automobile — without warrant — on information of credible person.
Search and seizure of automobile for transportation of intoxicating liquor may be made without a warrant if information upon which seizing officer acts was given by a credible person. Secs. 2615, 2618, 2619, Code 1942.
2. Searches and seizures — informant as credible person — determined by Court on evidence.
The question of whether source of information upon which officer acted in searching and seizing automobile without a warrant for transportation of intoxicating liquor was a credible person is for determination by the Court when evidence so obtained is offered on trial of cause. Secs. 2615, 2618, 2619, Code 1942.
3. Searches and seizures — informant not a credible person — evidence obtained in searching automobile — inadmissible.
In proceeding to confiscate and sell automobile allegedly used in transporting whiskey, where sheriff testified that source of information on which he acted in searching and seizing automobile without warrant was not a credible person, trial court was justified in concluding that sheriff did not have probable cause for seizing and searching automobile without a warrant, and that hence testimony of such officer that he found whiskey in automobile was inadmissible. Secs. 2615, 2618, 2619, Code 1942.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Kemper County; JOHN D. GREENE, J.
John E. Stone, Asst. Atty. Gen., Jackson, for appellant.
I. Only persons owning the possessory interest in property may raise the point of invalidity of search thereof. Brooks v. Wynn, Sheriff, 209 Miss. 156, 162, 46 So.2d 97; Brown v. State, 192 Miss. 314, 316, 5 So.2d 426; Dossett v. State, 211 Miss. 650, 655, 52 So.2d 490; Faulkner v. State, 134 Miss. 253, 98 So. 693; Harris v. State, 98 So. 349; Lee v. City of Oxford, 134 Miss. 647, 650, 99 So. 509; Pickett v. State, 155 Miss. 386, 389, 124 So. 364; Ross v. State, 140 Miss. 367, 372, 374, 105 So. 846; Sec. 2619, Code 1942.
II. Probable cause was sufficiently shown. Elardo v. State, 164 Miss. 628, 145 So. 615; Lenoir v. State, 159 Miss. 697, 132 So. 325; McGowan v. State, 184 Miss. 96, 105, 185 So. 826.
III. A public officer cannot impeach his own official act, especially when his act is in writing as an official document. Entrekin v. Tidewater Associated Oil Co., 203 Miss. 767, 777, 35 So.2d 305; Holden v. Brimage, 72 Miss. 228, 230, 18 So. 383; Johnson v. Smith, 53 Miss. 331, 337; Neal v. Shepard, 157 Miss. 730, 736, 128 So. 69; Stone v. Montgomery, 35 Miss. 83, 105. Strong Smith, Louisville, for appellees.
I. An action under the provisions of Sections 2618 and 2619 of the Mississippi Code of 1942 wherein the State seeks to obtain a forfeiture of an automobile for being used in violating the prohibition laws in a criminal cause. Brooks v. Wynn, Sheriff, 209 Miss. 156, 46 So.2d 97; Commonwealth of Mass. v. Certain Motor Vehicle, 261 Mass. 504, 159 N.E. 613; Edmunds v. State, 199 Ala. 555, 74 So. 965, 61 A.L.R. 548.
II. The State cannot appeal in a criminal cause where the question involved on the trial court's ruling was a mixed question of law and fact. City of Pascagoula v. Delmas, 157 Miss. 619, 128 So. 743; State v. Ashley, 194 Miss. 110, 11 So.2d 832; Sec. 1153, Par. 2, Code 1942.
III. In criminal cases the State has the right to appeal from a judgment acquitting the defendant on a question of law; however, in such cases the judgment of the lower court will not be reversed but the Supreme Court will only announce the correct rule of law. State v. Johnson, 166 Miss. 591, 148 S. 389.
IV. A search of an automobile is illegal if made by an officer without a search warrant on information furnished him by someone who is not a credible person. McGowan v. State, 184 Miss. 96, 185 So. 826.
V. When an officer searches an automobile without a search warrant, the officer must justify his act in so doing by proving that he had probable cause therefor. The question of whether the officer had probable cause to make said search is a judicial question to be passed on by the Court. McNutt v. State, 143 Miss. 347, 108 So. 721; Moore v. State, 138 Miss. 116, 103 So. 483.
VI. The owner of an automobile may object to an illegal search of said vehicle. Sec. 23, Constitution 1890.
VII. The seller of an automobile who holds a retain title note for the unpaid purchase price has sufficient interest in the vehicle to object to an illegal search of said vehicle. Faulkner v. State, 134 Miss. 253, 98 So. 691; Vance v. State, 130 Miss. 351, 93 So. 881; West-Barns Motor Co. v. State, 132 Miss. 20, 95 So. 675; Secs. 2618, 2619, Code 1942.
VIII. The defendant has a right to question an officer who made a search without a warrant as to the source of the officer's information, the character of the person giving the information to him, et cetera. Mapp v. State, 148 Miss. 739, 114 So. 825; Moore v. State, supra.
This is a proceeding by the State, for the use of Kemper County, to seize, sell and confiscate a certain automobile, the property of appellee, Oliver Brown, on the ground the automobile was being used by Brown in the transportation of whiskey. Brown had purchased the car from Burdette Ford Co., Inc., paying part cash and executing to Burdette purchase money notes for the balance, which notes Burdette had endorsed and assigned to Commercial Credit Corporation. The balance owing on the automobile when it was seized was $655.20. Burdette and Commercial Credit Corporation intervened and asserted claims to the car. The trial court gave a peremptory instruction for Brown and the claimants, reciting that Brown had released to claimants his interest in the automobile. The State appeals.
The peremptory given by the learned trial judge was upon the theory that the car was searched and seized without a warrant and that the person who gave the seizing officer information the car was transporting whiskey was not a credible person, and, therefore, such officer did not have probable cause for seizing and searching the automobile without a warrant, and testimony of such officer that he found whiskey in the car was not admissible. The proceeding was had under Sections 2615, 2618 and 2619. (Hn 1) Under those sections search and seizure of a motor vehicle may be made without a warrant if the information upon which the seizing officer acts is given him by a credible person. Moore v. State, 138 Miss. 116, 103 So. 483; McGowan v. State, 184 Miss. 96, 185 So. 826. (Hn 2) And the officer is not the sole judge as to whether such informant is a credible person. It is the province of the court to pass upon that question. McNutt v. State, 143 Miss. 347, 108 So. 721. (Hn 3) On that question the sheriff of Kemper County, who searched and seized the automobile, was the only witness who testified upon the hearing. We now set out his testimony as it bears directly on the point: "Q. You say you got this information from some person? A. Yes, sir. Q. Now that person, sir, has been guilty of committing crimes in this county? Does he have that reputation? A. Well, I don't know positively whether he has been convicted in the past or not, but not since I have been sheriff. Q. But he is not what you call a credible, reliable person? A. Well in this case he was. Q. I am talking about generally, not just this particular case? A. Judge, I don't have to answer that? THE COURT: Yes, you have to answer, if you know. A. I will have to answer? THE COURT: If you know. A. Well, Judge, to answer whether or not he is a credible citizen, I don't think he is." Later the sheriff gave this evidence: "Q. And you say that fellow has had a whiskey record? A. In the past, yes, sir. Q. You testify you wouldn't call him a credible person? A. No, sir. Q. You would not? A. No, sir." Since the sheriff himself said he was not a credible person and the sheriff was the only witness who testified in the case, that would seem to justify the trial judge in so concluding.
Affirmed.
Hall, Lee, Holmes and Ethridge, JJ., concur.