Daniels v. City of Gulfport, No. 26414.

No. 26414. | Miss. | May 16, 1927

^* Corpus Juris-Cyc References: Arrest, 5CJ, p. 402, n. 93; p. 416, n. 89; Criminal Law, 16CJ, p. 571, n. 93; Weapons, 40Cyc, p. 863, n. 89. Appellant was convicted in the circuit court of Harrison county of the crime, against appellee, the city of Gulfport, of carrying concealed a pistol, and was fined twenty-five dollars and costs. From that judgment appellant prosecutes this appeal.

Section 1103, Code of 1906 (section 829, Hemingway's Code) provides as follows:

"Any person who carries concealed, in whole or in part, any bowie knife, dirk knife, butcher knife, pistol, brass or metallic knuckles, slingshot, sword or other deadly weapon of like kind or description, shall be guilty of a misdemeanor, and on conviction shall be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars, or by imprisonment in the county jail not more than three months, or both, in the discretion of the court."

That statute was, by the city of Gulfport, adopted as an ordinance, which ordinance was in force when appellant committed the act which appellee charged was a violation of such ordinance.

There was no conflict in the evidence as to the facts of the case. The only question is whether the proven facts were shown by competent evidence. Appellant contends that they were not, because the evidence against her was secured by the officers arresting her without either a search warrant or a warrant of arrest.

Two policemen of the city of Gulfport, on the night of September 10, 1926, heard gunshots, apparently within the corporate limits of the city, and proceeded to the place about where they thought the shooting had taken place. There they found appellant and another woman, in a public place, traveling a public thoroughfare of the city. One of the policemen asked what they knew about the shooting, and one of them replied that somebody shot. Thereupon one of the policemen threw his flash light on appellant and the other woman, which revealed the fact that appellant had a pistol under her arm, partly concealed. Thereupon the appellant was arrested and taken into custody. At the time the pistol was discovered in the possession of the appellant it was concealed in part, and the two policemen were a little distance from her. The policemen had neither a search warrant nor a warrant for the arrest of appellant, and they neither arrested, nor made any move to arrest, appellant until the pistol in her possession was revealed by the flash light.

It is argued, in behalf of appellant, that the flash light which revealed the concealed pistol, under the circumstances stated, amounted to unlawful search of appellant's person.

We do not think that position sound. As we view it, this is simply a case of a crime being committed in the presence of the arresting officer, which, under the law, authorized the arrest of the guilty party without either a search warrant or warrant of arrest. The throwing of the flash light on appellant and her companion to see who they were did not constitute a trespass upon their persons. The officers had the right to look and see, and, for that purpose, use an artificial light. That is all they did. Thereby the crime was revealed to them, and thereupon they made the arrest. The eye can commit no trespass, under the law, although it may, according to good morals.

Affirmed.