114 So. 743 | Miss. | 1927
Instruction No. 2 for the state indicated that the jury was trying the defendants on a charge of transporting intoxicating liquors. Upon a poll of the jury, six responded that they had convicted the defendant of transporting liquors. The judgment of the court imposed a fine of one hundred dollars and thirty days in jail "for his offense of transporting liquors" against Chrestman.
In this case the conviction was had upon the testimony of Mike Omar, the marshal of the town of Lambert, who arrested the three defendants without a warrant, and who found liquor in the car of the defendant Chrestman.
There was a preliminary examination by the court as to the circumstances attending the search of defendant's car, which search resulted in the marshal, Omar, finding about four gallons of whisky therein. Late that night, hearing the noise of a car running without a muffler on the cut-out, he arose from his bed and went to a filling station near by, where he found the three defendants buying gasoline for the car. He got after them and "bawled" them out for running the car without a muffler on the cut-out, and told them they would have to pay a fine therefor. He declined to say that he arrested them therefor, but said he told them to come back the next morning. There was much examination as to his reason for searching the car, and, in his own language, "I thought they were drinking, and I just searched the car, and found a three or four gallon keg filled with whisky in the car, which Chrestman owned and was driving." He finally limited his opinion as to the parties drinking to Savage and Baker. He further said in this examination that he "fussed with them a little, kind of mad, and told them they had to come back the next day and pay a fine for running around over town with the cut-out open." The statement of the witness was very indefinite as to his reasons for searching the car. It does not appear that the witness thought these parties were drinking *678 to the extent of violating the law; that is, that they were intoxicated in a public place. Neither does the record disclose how he gained the opinion that Savage and Baker were drinking.
The lower court held that these facts, the substance of which we have detailed, constituted probable cause, that the search was legal, and the information derived thereby was admissible in evidence.
The attorney-general in this case contends that the evidence of the marshal was competent for two reasons: (1) That the marshal, Omar, gained the information after he had put the defendant and his companions under arrest for running the car with the cut-out open; and (2) that he had probable cause to believe there was whisky in the car from the fact that he found two of the defendant's associates drinking as detailed in the statement of facts.
The mere statement of an officer to a person that he would be expected to come back on the following day and pay a fine for an offense in violation of the law does not constitute an arrest. There is nothing in this record to show that the defendants, or any one of them, had any reason to believe that they were under arrest. The marshal had authority to make the arrest, but from the language used it seems there was no evident purpose to take the defendants into custody, there being neither actual nor constructive detention of the parties. So that the evidence could not be admitted, under the authority of the case of Toliver v.State,
2. Was there probable cause for the search of defendant's car, thereby rendering Omar's discovery of the whisky therein and the attendant circumstances competent evidence?
Section 2, chapter 244, Acts of 1924 (section 2239 et seq., Hemingway's Code 1927), authorizes the search of a motor vehicle for intoxicating liquors by an officer upon probable cause. *679
In Moore v. State,
"When a search is made without a warrant, the person making it must justify his act in so doing by proving that he had probable cause therefor. In the case at bar the officer could have obtained a warrant to search the automobile, though when the warrant was obtained the automobile might have been beyond reach, by making the same oath before a magistrate that he made on the trial in the court below; that is, that he had good reason to believe and did believe that intoxicating liquor was being transported in the automobile."
In the case of McNutt v. State,
In the case of Ingram v. State,
There is no showing in this record that the defendants, or any of them, were violating any law, unless it was the operation of the car without a muffler on the cut-out, nor is there anything to indicate that the officer had good reason to believe that whisky was possessed by the defendants and was in the car. We do not think the mere fact that an officer says he searched a car upon discovering, as he believed, that some inmate of the car had *680 drunk intoxicating liquor is sufficient to warrant a search thereof.
The case of State v. Messer,
We think the evidence was secured in this case by an unlawful search of the defendant's car, and we cannot agree with the lower court that the facts in this case warranted the search or were probable cause therefor. The evidence therefore was not competent. We do not decide any other question presented in this case.
Reversed and remanded.