121 So. 278 | Miss. | 1929
Appellant was driving in his automobile in the streets of Jackson in the nighttime. J.D. Dickson, a policeman of the city, testified that he had reason to suspect that *618 appellant had intoxicating liquor in his car; that he and another policeman, in an automobile, pursued appellant for the purpose of overhauling and searching appellant's car for intoxicating liquor and arresting him if liquor was found in his car; that appellant soon realized that he was being pursued, and speeded up his car to get out of the way of the policemen; that while being so pursued appellant threw a pint bottle out of his car, which was broken when it came in contact with the ground; that the witness Dickson then got out of his car, picked up a piece of the broken bottle, held a lighted match to it which caused the contents to burn, and for that reason he testified, in his judgment, the bottle contained intoxicating liquor; and that thereupon the policemen pursued appellant further, arrested him and searched his car, and there found eight pints of whisky.
To sustain the conviction the city relied solely on the evidence of the policeman Dickson. The arrest of appellant, and the search of his car, were made without either a warrant for the arrest or the search. Appellant objected to the evidence against him upon the ground that it had been illegally secured, which objection the court overruled. That action of the court was the only alleged error assigned and argued by appellant. The city sought to justify the search of the car upon two grounds, namely: That the officers making the search had probable grounds therefor, and if mistaken in that position, that appellant's possession of the liquor was discovered by the officers without a search — in other words, that the crime was committed in their presence.
To sustain the first ground, Policeman Dickson testified that the reason appellant's car was pursued, overhauled, and searched was that he had been informed by reliable persons that appellant was handling whisky on Roach and Lynch streets in the city of Jackson. On cross-examination the witness was asked to give the names of the persons from whom he got such information. *619
To this question the city objected, and the objection was sustained by the court, to which action of the court appellant excepted. In Perry v. State,
Neither is the second ground, relied on by the city as a justification for the search, maintainable. When appellant threw the bottle of whisky out of his car, he was then being pursued by the officers for the purpose of overhauling and searching his car for intoxicating liquor and arresting him if liquor was found in his car. Appellant was at the time fleeing from the officers for the purpose of preventing such search and arrest; in other words, when the officers discovered the whisky in possession of appellant, the search was in process. The pursuit for the purpose of search was just as much a part of the search as the act of the officers in laying hands upon the car and looking into it for the purpose of discovering its contents. It was held in Sellers v.Lofton,
It follows from these views that the judgment appealed from must be reversed.
Reversed and remanded.