118 So. 613 | Miss. | 1928
The theory of the state seems to have been that the assassination was due to a conspiracy, formed by appellant and others, and that on the night in question appellant drove the death car, putting the co-conspirators out at the scene of the murder, and later picking them up. Aside from incriminating statements alleged to have been made by appellant, the testimony was largely circumstantial. An important link in the chain of circumstances introduced by the state was the introduction of four loaded buckshot shells, of the same kind as the empties found near the body.
Experts in the use of firearms testified that two of the empty shells were fired by a certain pump gun and two by a certain automatic. Both guns were exhibited to the jury, shown to belong to two of the alleged coconspirators, and seen in appellant's car the day of the killing. Sheriff Frost testified that, some weeks subsequent to the homicide, he procured a search warrant authorizing him to enter and search appellant's home for intoxicating liquors, "stored, kept, owned, controlled, or possessed for purposes of sale," etc., being authorized by section 2238, Hemingway's 1927 Code (Laws 1924, chapter 244). At the time of the search appellant was in jail under conviction of another crime, and there was no one present at his home when searched. Mr. Frost broke open the house, entered, broke open a trunk, and found therein two bottles partially filled with whisky, and also found the four loaded buckshot shells in question. *766
Timely objection was made to the testimony in reference to the seizure of the shells and their production before the jury, on the ground that they were procured by unlawful search of appellant's home. This objection was overruled, and constitutes the principal assignment of error. That testimony procured by entrance of the home without a valid search warrant is incompetent has been settled by this court in Tucker v.State,
In both of these cases our court followed decisions of the United States supreme court cited in Tucker's case, supra, the United States supreme court holding that testimony so procured was a violation of the Fourth Amendment of the Federal Constitution, and to admit such testimony would be a violation of the Fifth Amendment. The Fourth Amendment reads:
"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."
That part of the Fifth Amendment here pertinent reads:
". . . Nor shall be compelled, in any criminal case, to be a witness against himself."
We quote section 23 of our state Constitution:
"The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating *767 the place to be searched and the person or thing to be seized."
The applicable part of section 26 of our state Constitution reads:
"And he shall not be compelled to give evidence against himself."
The Fourth Amendment being identical in purpose and substance with section 23 of our Constitution of 1890, and the practical identity in language of the Fifth Amendment with section 26 of our Constitution, were the reasons given in Tucker's case for following the construction placed by the United States supreme court. In both the Tucker and Owens cases, supra, the officers were attempting to search homes without any warrants, while here the officers had a whisky search warrant, particularizing the premises to be searched, and the thing to be searched for, namely, intoxicating liquors.
Statutes authorizing searches and seizures must be strictly construed against the state. Livelar v. State,
In arriving at its conclusion in the Tucker and Owens cases, this court had before it, and followed, cases from the United States supreme court, of which Boyd v. U.S.,
"It has long been settled that the Fifth Amendment protects every person against incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. Agnello v. United States,
"1. The Fourth Amendment declares that the right to be secure against unreasonable searches shall not be violated, and it further declares that `no warrants shall *769
issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.' General searches have long been deemed to violate fundamental rights. It is plain that the amendment forbids them. In Boyd v. United States,
"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." The court held: "And it is clear that the seizure of the ledger and bills, in the case now under consideration, was not authorized by the warrant."
In Reynolds v. State,
There is no law prohibiting the possession of shells. They were not contraband, as defined above. Section 23 of our Constitution prohibits the issuance of a search warrant for one's residence, unless such warrant be supported by affidavit "specially designating . . . the . . . thing to be seized." In Tucker'scase, supra, Judge ANDERSON, speaking for the court, said:
"The securities afforded by our Constitution against unreasonable search and seizure, and self-incrimination, are not to be given a narrow construction. They are a part of our Bill of Rights. They stand along with the right of trial by jury. They are among the chief fundamentals of our system of government." *771
The able assistant attorney-general cites Pringle's case,
An officer, unlawfully making an arrest, may search the person for the purpose of disarming him and to prevent means of escape. As stated in the Tucker case, a number of states, perhaps a majority, hold that courts should not inquire into how evidence was obtained, in order to determine its competency. Our court, however, has aligned itself with the supreme court of the United States and a minority of the states, holding that testimony procured in violation of constitutional guaranty against unlawful search and seizure is incompetent, and that convictions upon such evidence will not be upheld.
Since possession of the shells was not unlawful per se, and since they were not specially designated in the warrant as thething to be seized, we hold the seizure to be unlawful and in violation of section 23 of the state constitution. Their introduction in evidence was a violation of section 26, being tantamount to compelling appellant to give evidence against himself; for, as stated in Tucker's case:
"What is the difference in principle in forcing a defendant to speak against himself by word of mouth, and in forcing, by an unlawful search, the secret things of his home to give evidence against him? We see none. His home is as sacred from illegal force as his person."
In seizing that which was not particularly designated in the warrant, and that which was not unlawful to possess, the officer was acting as if he had no warrant. *772
There are other errors assigned, but, under the conclusion reached, it becomes unnecessary to discuss them. The cause is reversed and remanded.
Reversed and remanded.