93 So. 377 | Miss. | 1922
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
“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, 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, 21 So. 149, but not decided. The motion to
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
Affirmed.