Davis v. State

110 So. 447 | Miss. | 1926

^* Corpus Juris-Cyc. References: Criminal Law, 16 C.J., p. 571, n. 93; p. 747, n. 47; p. 874, n. 91; 17 C.J., p. 147, n. 68. The appellants, Chris Davis, Bud Davis, and Boy Davis, were jointly indicted for attempting to manufacture intoxicating liquor, and were convicted and sentenced to the penitentiary for a term of three years, and from this judgment this appeal was prosecuted.

From the testimony offered at the trial, it appears that the sheriff of the county and another officer discovered a still and two or three barrels of mash in an inclosed pasture. They secreted themselves near the still during the night and watched it until the following morning. A short while after sunrise, they saw Bud Davis pass near the still. He had a shotgun and appeared to be hunting. In a short while he returned to the still accompanied by Chris and Boy Davis and another party, whom they were unable to identify, Chris and Bud Davis stopped a moment at the still, and then walked on into the woods and were seen no more. Boy Davis and his companion began cleaning leaves out of the furnace of the still, and a few moments thereafter they discovered the presence of the officers and ran away. The testimony further showed that the land on which the still was discovered belonged to a Mr. Rutherford, but by permission of the owner it had been fenced by Chris Davis and used by him as a pasure for three or four years. The other appellants had no interest in the premises searched. The officers did not have a search warrant when the search was made and the evidence secured.

As against Chris Davis, we think this case comes within the doctrine announced in the case of Tucker v. State, 128 Miss. 211, 90 So. 845, 24 L.R.A. 1377, and the many cases reaffirming that doctrine, and that the evidence in regard to the still was inadmissible. The testimony shows that he occupied and controlled the land on which the still was located at the time of the search. The fact that his occupancy and use of the premises was by permission of the owner, without the payment of rent, is immaterial, and does not deprive him of protection against an invasion of his rights therein. Since the other two appellants had no interest in or right to the possession of the land searched, they cannot complain of the admission of evidence secured by an unlawful search of the premises. Falkner v. State,134 Miss. 253, 98 So. 691.

The next assignment of error is based upon the admission of testimony as to certain statements in the nature of a confession which were made by appellant Bud Davis in the presence of the other two appellants, and which tended to incriminate all three of the appellants. When this testimony was offered, it was objected to, and counsel requested that the jury be retired, presumably, although the record does not so state, for the purpose of conducting a preliminary examination as to the competency of the proffered testimony. The request to have the jury retired and the objection to the testimony were overruled, and the witness was permitted to testify as to his "understanding from the run of the conversation."

Without now passing upon the question as to whether the failure of the court to determine the competency of the purported confession, by a preliminary examination in the absence of the jury, was reversible error, we are of the opinion that it was reversible error to permit the witness to testify to his understanding "from the run of the conversation." He should have been required to detail the statements of the appellant, or at least the substance thereof, from which the jury would draw its own inferences or conclusions.

A large part of the briefs of counsel is devoted to a discussion of the failure of the court to grant the appellants a severance, and to the question as to whether, as a matter of fact, a motion for a severance was presented to the court before the appellants were arraigned, as required by section 1490, Code of 1906 (section 1248, Hemingway's Code).

The record as filed in this court contains a motion for a severance signed by appellant Bud Davis, but it does not show that this motion was ever presented to or passed upon by the court. The record simply recites that on the day of the trial the defendants were arraigned and pleaded not guilty, and announced ready for trial. During the examination of the fourth and last witness for the state, counsel dictated into the record a statement which indicates that some controversy existed as to whether the motion had been called to the attention of the court before arraignment of the defendants, but no special bill of exceptions making the matter properly a part of the record was filed within the time fixed by law. Certain purported bills of exception, which were signed and filed in his court about five months after the trial of the cause in the court below, and nearly two months after the record was filed in this court, cannot be considered by us because they were not filed within the time fixed by law, and, consequently, the assignment of error based upon the alleged failure of the court below to grant the defendants a severance is not based upon any ruling of the court which appears of record.

For the errors herein indicated, however, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.