Blowe v. State, No. 22799

No. 22799 | Miss. | Sep 15, 1922

Anderson, J.,

delivered the opinion of the court.

Appellant, Joseph Blowe, was indicted and convicted in the circuit court of Adams county of the crime of grand larceny and sentenced to the penitentiary for five years, from which judgment he prosecutes this appeal.

The property which appellant was charged with the larceny of consisted of men’s suits, shirts, drawers, blankets, shoes, and other articles belonging to H. F. Byfnes, who owned and conducted a department store in the city of Natchez. Byrnes had been missing articles of that character, and with a view of detecting the thief procured a member of the police force of the city of Natchez to remain in his store at night on watch. On the second night of his watch between seven and eight o’clock appellant came to one of the doors of the store, and tried to force it open, and when in the act of so doing was arrested by the said officer. At the time of his arrest it was shown that he had on a suit of underwear, which Byrnes claimed was stolen from his store. Appellant was lodged in jail. Thereupon two police officers of said city of Natchez. Copillard and By an, without a search warrant, searched the home of appellant, and found there various articles of goods answering the description of those missing out of the store of Byrnes.

Before entering upon the trial the appellant interposed a motion to quash the indictment on the ground that the evidence jipon which the grand jury found it was procured without a search warrant. And appellant offered to introduce evidence to establish the ground of said motion, but was denied by the trial court the right to do so, and this action of the court is the basis of one of the assignments of error. Appellant’s motion was based on the holding of this court in Tucker v. State, 128 Miss. 211" court="Miss." date_filed="1922-03-15" href="https://app.midpage.ai/document/tucker-v-state-7994199?utm_source=webapp" opinion_id="7994199">128 Miss. 211, 90 So. 845; Williams v. State, 92 So. 584" court="Miss." date_filed="1922-03-15" href="https://app.midpage.ai/document/williams-v-state-7994337?utm_source=webapp" opinion_id="7994337">92 So. 584; Will Butler v. State, 93 So. 3" court="Miss." date_filed="1922-10-15" href="https://app.midpage.ai/document/butler-v-state-7994367?utm_source=webapp" opinion_id="7994367">93 So. 3; and Herman Taylor v. State, 93 So. 355" court="Miss." date_filed="1922-10-15" href="https://app.midpage.ai/document/first-nat-bank-of-aberdeen-v-peugh-7994372?utm_source=webapp" opinion_id="7994372">93 So. 355. It was held in those cases that evidence secured against a defendant in a criminal case by the unlawful search of his premises could not be used against him on his trial. It is argued that, the. evidence being incompetent, it could neither be used against the defendant on his trial nor before the grand jury as the basis for an indictment. This identical question has not been decided by this court. In Kyzar v. State, 125 Miss. 79" court="Miss." date_filed="1921-03-15" href="https://app.midpage.ai/document/kyzar-v-state-7993888?utm_source=webapp" opinion_id="7993888">125 Miss. 79, 87 So. 415, the motion to quash the indictment was on the ground that it was found by the grand jury without any evidence; and on the trial of the motion the appellant offered to show that no witness appeared before the grand jury on the date the indictment was found. The court said that the trial court-properly refused to inquire into -the character or the sufficiency of the evidence upon which the indictment was found. Baldwin v. State, 125 Miss. 561" court="Miss." date_filed="1921-03-15" href="https://app.midpage.ai/document/baldwin-v-state-7993936?utm_source=webapp" opinion_id="7993936">125 Miss. 561, 88 So. 162" court="Miss." date_filed="1921-03-15" href="https://app.midpage.ai/document/shell-v-monroe-county-7993937?utm_source=webapp" opinion_id="7993937">88 So. 162, is to the same effect; the court saying in that case:

“The rule in-this state is that no inquiry can be made into the evidence on which the grand jury acted in finding an indictment.”

‘ The question was raised in Smith v. State, 61 Miss. 754" court="Miss." date_filed="1884-04-15" href="https://app.midpage.ai/document/smith-v-state-7986074?utm_source=webapp" opinion_id="7986074">61 Miss. 754, by plea in abatement to the indictment, which plea set out that the indictment had been found by the grand jury without an examination of any sworn testimony. The court said that the authorities on the question were conflicting, but it preferred those which denied such an inquiry.

This exact question was involved in Hammond v. State, 74 Miss. 214" court="Miss." date_filed="1896-10-15" href="https://app.midpage.ai/document/hammond-v-state-7987924?utm_source=webapp" opinion_id="7987924">74 Miss. 214, 21 So. 149, but not decided. The motion to quash the indictment in that case was based on the ground that the indictment had been found by the grand jury in whole or in part upon the testimony of the wife of the accused, who under the law was incompetent to testify against her husband. Although not decided, the question was considered and discussed by the court, and the opinion of the court in State v. Dayton, 23 N. J. Law, 49, 53 Am. Dec. 270, holding that on such an inquiry the court would not go into the question of either the sufficiency or the competency of the evidence before the grand jury, was quoted with approval.

There is a division among the authorities elsewhere on this question, but the weight of authority as it appears is -to the effect that, in order to determine whether an indictment was legally found, no inquiry whatever will be gone into as to whether the evidence before the grand jury was either competent or legally sufficient. We think this rule is sustained by the better reasoned authorities, as well as the weight of authority. The principle is stated and-authorities collated in 17 A. & E. Ency. of Law (2d Ed.), p. 128; 12 Standard Ency. of Pro. 620; 14 R. C. L. section 49, p. 205.

On the trial of appellant the evidence obtained against him by virtue of the search of his home without a search warrant was used over his objection, and this' action of the court is assigned as error. Clearly under Tucker v. State, supra, and the cases following it, this evidence was incompetent; however under the facts of this case its admission was without harm to appellant, because he voluntarily went on the witness stand in his own behalf, and admitted the only fact which the state had been enabled to prove by virtue of the illegal search of his home, namely, his possession of the goods alleged to have been stolen.

There aré several other assignments of error, some of which are well founded. The guilt of the defendant, however, was so overwhelmingly shown by the evidence that the jury could have reached no other verdict than that of guilty. It is apparent from the entire record in this case that, if none of the errors committed by the court had taken place, the same result would have been reached. In other words, we find that under the facts of the case appellant was not denied any substantial right.

Affirmed.