98 So. 691 | Miss. | 1924
Lead Opinion
delivered the opinion of the court.
The appellants were convicted of an attempt to manufacture intoxicating liquor, and sentenced to one year each in the State Penitentiary, from which conviction they appeal, and assign several things as error; one of the assignments being that the court erred in admitting
It was held in Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and in subsequent cases, that evidence procured without a search warrant was not admissible in evidence; but the other cases involved searches of residences and buildings or rooms under section 2088, Hemingway’s Code (section 1749, Code of 1906), whereas in the present case the still and mash were found upon the premises of the appellant Tom Falkner about three hundred yards from his residence in the woods. The appellant Pete Falkner lived somewhere on the premises of Tom Falkner, but the record does not disclose exactly where or in what capacity he lived there, or what his rights of possession were.
The attorney-general in his brief says:
“ The sheriff and his deputy located the place and found there four barrels of beer and a still with furnace and trough near a spring, and all things necessary for the manufacture of liquor. This was found in a wooded district. The sheriff did not know who owned the land nor who claimed it. They did not know who had placed the beer there or who owned the still. They therefore concealed themselves and determined to keep watch until such time as the guilty parties would come to operate the still. On one occasion, after having kept an all-night vigil, they saw the defendants come there and stir the beer and busy themselves round about the place, whereupon the sheriff and his deputy attempted to draw nearer to the place in order that they might get a better view, or perhaps hear some conversation between the parties, but, unfortunately, they were discovered, and the appellants ran away. . . . The still and mash have not been introduced in evidence, nothing has been seized, the privacy
The testimony upon which the appellants were convicted was that of the sheriff and his deputy obtained by them when searching the prémises of the appellant Tom Falkner without a warrant. Does the prohibition of section 23 of the Constitution, as construed in the Tucker Case, supra, apply to a place where no buildings are situated? Section 23 reads as follows:
“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 the place to be searched and the person or. thing to be seized. ’ ’
The security of the section is of the persons, houses, and possessions. If the section meant only to protect the persons and houses the words “and possessions” would be superfluous and meaningless. The rule is clear that in construing Constitutions every word is to be given some meaning. The words “and possessions” indicate clearly something other than houses and persons. The term “possessions” is a very comprehensive term, and includes practically everything which may be owned, and over which a person may exercise control. Webster, in his Unabridged Dictionary, defines the word “possession” as follows:
“In law, Áct, fact or condition of a person having such control of property that he may legally enjoy it to the exclusion of others having no better right than himself. The thing possessed; that which any one occupies, owns or controls; property in the aggregate, wealth, dominion. ”
“The detention and control* or the manual or ideal custody, of anytMng wliicli may be the subject of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. ’ ’
In 6 Words and Phrases, First Series, p. 5464, “possession” is defined as follows:
“Possession is a detention or enjoyment of a.thing which a man holds or exercises by himself or by another, who keeps or exercises it in his'name” — citing authorities.
“The possession which is necessary as an element in the acquisition of title by prescription must have three qualities; it must be long, continual* and peaceable” — citing authorities.
“Possession is denoted by the exercise of acts of dominion over the property, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state; such acts to be so repeated as to show that they are done in the character of owner, and not as an occasional trespasser.”
“Possession is that condition of fact under which one can exercise his power over a corporeal thing to the exclusion of all others.”
Numerous other definitions are set forth in the said volume last cited.
The rule is well settled that constitutional provisions designed for the protection of persons are to be liberally construed. Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647.
“A Constitution should be construed so as to effectuate, not defeat, the policy indicated by its framers.” Brien v. Williamson, 7 How. (Miss.) 14.
In discussing the question of the similar provision of the Federal Constitution the supreme court, in the Boyd Case, supra, at page 534 of the Supreme Court Eeporter, said:
“As, therefore, suits for penalties and forfeitures, incurred by the commission of offenses against the law, are of this gwasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; and we are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure —and an unreasonable search and seizure — within the meaning of the Fourth Amendment. Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviatéd by adhering to the rule that constitutional
In Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, the supreme court of the United States quoted from Bram v. United States, 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568, 10 Am. Crim. Rep. 547, the following language:
“The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to
The language of the Fourth Amendment to the Constitution of the United States is: “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 warrants shall issue, but upon probable cause, supported by oath or affirmation.”
In the case of In re Jackson, 96 U. S. 727, 24 L. Ed. 877, the supreme court of the United States, in construing the provision'of the United States Constitution above quoted, held that a letter sealed and placed in the mail of the United States could not be seized or opened without a search warrant, holding that the constitutional protection extended to the effect of the citizen wherever it may be situated.
The language of our Constitution is some what broader than the words “papers or effects,” and, applying the principle of liberal construction which governs in cases affecting the liberty and property of the citizen, wethink the term embraces all of the property of the citizen.
The history of the adoption of the first ten amendments to the United States Constitution and the Bill of Bights of the several state Constitutions show that it was the purpose of the framers of the Constitution to except out of the powers, of legislation conferred on the several legislative bodies the power to infringe these rights except in the manner provided for in the said several sections. The great controversy that arose in this country over the “writs of assistance,” which were search warrants issued to enable the government to invade the property and houses of the citizen — the writs of assistance were regarded with great aversion by the people of this country — and the history of the search warrants throughout the existence of time which they have existed, shows that they have been distasteful to free men, and especially to the American and English
We are therefore convinced that the search made in this case was unlawful as to Tom Falkner, and that the evidence obtained thereby was an invasion of his rights, and could not be used in a criminal prosecution against him. We have held that a defendant cannot complain of the unlawful search of the’premises of another. Harris v. State, 98 So. 349. Therefore it is not an error of which Pete Falkner can complain that an unlawful search of Tom Falkner’s place was made and evidence obtained thereby.
The judgment will be reversed as to Tom Falkner, and the cause remanded, and affirmed as to Pete Falkner.
Concurrence Opinion
(specially concurring).
I concur in the holding set forth in the main opinion that the place here searched by the sheriff is a “possession” within the meaning’ of section 23 of the Constitution. There is no claim on the part of the sheriff that he searched Falkner’s premises because of information received by him that intoxicating liquor was being manufactured there; his right to make the search without a warrant on probable cause under section 5, chapter 189, Laws of 1918, therefore does not arise. Consequently the search without a warrant was illegal. I am of the opinion, however, that the evidence was admissible not only against Pete Falkner, but against Tom Falkner also, for the reasons set forth in my dissenting opinion in Owens v. State, 98 So. 233, to which I adhere. Until the cases of Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and Owens v. State, 98 So. 233, are overruled, I must bow, of course, to their authority. Consequently I must concur in the reversal of the judgment of the court below as to Tom Fallmer, and of course I concur also in the affirmance of the judgment as to Pete Falkner.