121 So. 293 | Miss. | 1929
It appears that the appellants were upon the public road near Hattiesburg engaged in changing a tire on their car, having had a puncture or trouble of that kind, and a deputy sheriff came along, and, seeing their trouble, asked if he could be of any assistance. Appellants replied that they were getting along all right. They were prizing up the rear axle of their car with a pole which broke, and the deputy sheriff drove in front of their car and took a jack out of his own car and tendered it to them, and they engaged in prizing up the real axle and changing the tire. While the deputy sheriff was in the road he smelled liquor, and, after he got out of his car and went to where the appellants were, he still smelled it. He then went into close contact with the appellants to see if the liquor was on their breath, but found it was not. Still smelling liquor, he went along the side of the appellants' car, and when at the car door the scent was stronger. He then disclosed to the appellants who he was, and stated that he believed they had liquor in their *693 car. They asked him if he had a search warrant, and he told them he had good reason to believe they had liquor in their car, and that he did not need a search warrant to search it. Opening the door of their car, he found the scent was much stronger, and he discovered therein one keg in the rear and other kegs covered with quilts, making four ten-gallon kegs of whisky. One of the kegs was leaking through the cork which seemed not to fit, or was deficient, so that the whisky leaked out on the bottom of the car. The deputy sheriff testified that prior to going to the car he noticed it was pretty heavy and remarked to the appellants that the car seemed to be very heavy and asked what they had in it, and they replied that they had luggage. He also testified that, when he made this remark about the weight of the car and asked what they had in it, one of the appellants became very nervous; and that these facts, coupled with the scent of the whisky, led him to believe that the car contained whisky, and that he considered it probable cause for the search. He had no search warrant or affidavit for the search. He arrested the appellants and carried them to a nearby house where he stored the whisky and got help and carried the appellants back to Hattiesburg where they were placed in jail.
This testimony was objected to when offered, on the ground that the search was illegal, and the evidence could not be introduced.
It is conceded that there was no affidavit or search warrant, but this court held in Moore v. State,
It appears from the evidence in this case that the officer was in the public highway when he detected the scent of whisky and was not a trespasser in any wise upon the appellants, and that when he came in contact with the appellants he discovered that this scent did not emanate from their bodies, consequently he must locate it elsewhere, if he locates it at all. When he came in contact with the car, but before touching it, or opening the door, he found the scent to be much stronger, thus indicating clearly that the liquor odor was coming from the car. He testified that he was familiar with the scent of whisky, and, taking this in connection with the demeanor of one of the appellants when he mentioned the heaviness of the car, we think was sufficient to make a man reasonably believe that the appellants had whisky in the car.
The court below passed upon the sufficiency of the evidence to constitute probable cause, and we are unable to say that the court was not warranted in so finding.
There is no other assignment of error worthy of consideration, and the judgment of the court below will be affirmed.
Affirmed.