120 So. 731 | Miss. | 1929
On March 24, 1928, the appellant and another man drove their automobile into the town of Independence or Bucksnort, parking in front of the post office. There, at the time the appellant and his companion drove up, were standing or sitting the town marshal and several others. The appellant, with his companion, stepped from the car and inquired of the marshal if Joe Graham was in town, and he replied that he thought he was in the post office. In his testimony, the marshal stated that he smelled whisky on the appellant's breath at the time he made inquiry of him; that while the occupants of the car were in the building, a man, one Burford, came along and said that there was a bottle of whisky in the back of appellant's car and asked him if he "did not want a drink;" that also one Dr. Thompson did likewise, and passed on; that a number of small boys pointed their fingers to the glass window in the back of the car; that one Mr. Scruggs walked up close to the rear of the car and saw the whisky, through the glass window, on the back seat next to the glass window, and said to him: "Ben, you've been hunting for whisky. Here it is now." That thereupon he opened the door of the car, and *301 reached in and took the bottle of whisky and satisfied himself that it was such; that shortly afterwards, when appellant came out of the post office building, he arrested him; and that appellant, upon being arrested, remarked that his companion had nothing to do with the whisky, but that it was in his possession and belonged to him alone.
Upon a preliminary investigation, the court held there was probable cause for the seizure of the whisky and the arrest of the defendant without a search warrant. The appellant rested upon the insufficiency of the evidence to establish probable cause for the search of the car.
The officer saw the bottle of whisky before he put his hand upon it or the car; and we think the officer had probable cause for taking the whisky into his possession under the circumstances detailed above. Had the officer failed to seize the whisky or arrest the appellant, he would have made himself the laughing stock of the community.
The appellant relied entirely upon the insufficiency of the above facts showing probable cause, to establish that the search was unlawful and the evidence secured thereby incompetent. He objected to the evidence, moved to exclude it, and asked for a peremptory instruction, all of which were refused by the court.
The cases of Canteberry v. State,
Affirmed.