Deaton v. State

102 So. 175 | Miss. | 1924

Holden, J.,

delivered the opinion of the court.

Van Deaton appeals from a conviction on a charge that he “did then and there knowingly and willfully oppose M. A. Crawford; a legally authorized deputy sheriff of Lee county, Miss., while the said Crawford was legally attempting to execute a search of the premises, houses and outhouses occupied by said Deaton in said county and state; said Crawford having then and there a duly and legally executed search warrant for the search of said.premises,” etc.

The circuit judge heard the case and decided the appellant was guilty of “opposing or resisting an officer while attempting' to serve or execute a legal writ or process,” under section 1297, Code of 1906; section 1030, Hemingway’s Code. The judge also decided the search warrant under which the officer was searching the outhouses for liquor was illegal because it did not cover the outhouse, but that notwithstanding this fact the appellant had no right to oppose the unlawful search by the use of force in preventing the search and seizure.

The record discloses that the deputy, Crawford, in company with another officer by the name of Jess Wade, obtained a search warrant to search the building occupied by the appellant. After searching this building, in which they found no liquor, they proceeded to search certain outhouses on the premises of appellant. Appellant objected to this latter search, on the ground that the officers had no search warrant to search these outhouses. They proceeded, however, in their unauthorized search, and several jugs of whiskey were discovered and seized, and appellant undertook to prevent the officers from taking the liquor or making further search of the outhouses. There seems to have been a dispute between Wade and appellant and- a general scuffle between the officer Crawford and appellant, over the jugs of liquor, which in the scuffle were broken and the liquor destroyed. After this happened the officers left, and this charge and conviction followed.

We shall here set out the testimony of Officer Crawford which describes, in his own language, what happened between him and appellant with reference to the jugs of liquor. When the jugs of liquor came into view and the possession of them became disputed between the officers, and appellant, Crawford testified that the following incident took place:

“And Jess Wade hollowed, ‘Look out! he’s coming.’ And Van came down there and he ran by the car, I suppose lie did, and got two jugs out of the car, and he come up to the door with a jug in his hand, and I pulled out my pistol and told him to stop, and he didn’t stop, and I put it hack in my pocket and grabbed him, and we went into a tight little scuffle, and in the scuffle the liquor was all destroyed. I didn’t have time to know who done it; I was busy with Van. He was about as good a man as I .was, and I was about as good a man as he was, and Jess Wade grabbed the jug and jumped out of the door, and somebody on the outside threw something at it and broke it; and Jess just ran on with the handle in his hand for a little piece and stopped, and I told Jess, ‘You just as well stop, you ain’t got nothing but the handle, and the thing is all over.’ That’s about as near what happened as I can tell it. We was all in a good humor.

“Didn’t you state that you couldn’t swear whether it was whiskey or not?

“I think I testified it was whiskey; smelt like whiskey.I didn’t drink none of it, but it was poured all over me. If I had been set fire, I would have burned up in a few minutes. ’ ’

The above testimony is sufficient to show what happened between the officer Crawford and the appellant, and also what opposition or resistance was made on the part of the appellant. It will be noted the court decided that the search warrant was invalid as to searching the outhouses, which decision is correct. So the question presented to us is whether or not one may lawfully oppose or resist an officer who is acting without lawful authority in the search of one’s premises; or, we will say, is it lawful for the occupant of the premises to use reasonable force to repel the invasion of a trespasser who is attempting to search the premises? We think there is no criminal offense under such circumstances, and are unable to agree with the decision of the lower court that a trespasser may not be opposed by reasonable force.

It will be noticed above that the. indictment upon which the appellant was convicted, charges appellant with opposing the officer Crawford while searching the premises, he “the said Crawford having then and there a duly and legally executed search warrant for the search of said premises.’'’ The lower court having held that this part of the indictment had not been proven, because the search was .illegal, we do not understand how the court reached the conclusion that the a]ipellant was guilty “as charged in the indictment.”

The record in the case shows the appellant used no unreasonable force in opposing the officer in the unlawful search of the premises. Crawford states in his testimony that “we was all in a good humor.” No damage seems to have been done, except the loss of the outlawed liquor. In view of these conclusions, we are led to hold that the appellant is guilty of no offense, and therefore must be discharged.

Reversed, and appellant discharged.