Helton v. State, 101 So. 701

Helton v. State

101 So. 701 | Miss. | 1924

Sykes, P. J.,

delivered the opinion of The court.

The appellant was convicted of having liquor in his possession. From which conviction, this appeal is here prosecuted.

*624The testimony for the state is to the effect that the sheriff and other county officers found two kegs of liquor in some woods about one hundred yards from the home of the appellant. They had no search' warrant to search the lands of the appellant. There was testimony of the state indicating that the appellant was seen, by these officers near the kegs of whisky. That, after the officers took possession of the whisky, they went to the home of appellant, and he told them he knew nothing about the whisky being where it was found, and that it was not found by them on his land. The appellant denied ownership of the whisky, denied that he knew of its being' where it was found, and denied that he was over there on the day it was found. He stated further that at the time he told the sheriff it was not found on his land he did not exactly know where the officers found the whisky, nor exactly where his land lino was. The testimony of the officers was to the effect that the two kegs were in the neighborhood of one hundred yards from the home of the appellant, in a southeasterly direction. The appellant testified further that he had learned the exact location of his land lines, and that the south and east lines were each two hundred and fifty yards from his home, and that he had subsequently learned the exact place where the kegs of whisky were found by the officers, and that this place was on his land. Several other witnesses testified on behalf of the appellant that they knew where the whisky was found, and that they knew where the appellant’s line was, and that the whisky was found on the land of the appellant.

It is the contention of the state that, since the appellant told the sheriff in the first instance that the whisky was not found on his land, this is a sufficient contradiction of the other testimony as to where the lines of the appellant really are, and therefore a controverted question of fact to be decided by the jury.

The testimony of the officers was all objected to by the *625appellant, because they had no search warrant, and the appellant did not agree to a search of his land. We do not think that the statement of the appellant to the sheriff in the first instance, namely, that the whisky was not found on his land, with his explanation of it that at that time he did not know the .exact place where the kegs were found, nor his exact land line, is in fact a contradiction of all of the other testimony as to where the land line is, and that these kegs were, as a matter of fact, found on his land. This testimony shows that his line was two hundred and. fifty yards east of his residence and two hundred and fifty yards south of his residence, and that the kegs were found within one hundred yards of the residence in a southeasterly direction. From this testimony it is manifest that the whisky was found upon the land of the appellant, that the sheriff had no search warrant to search this land, and therefore that the peremptory instruction requested by the appellant should have been given.

. Reversed, and appellant discharged.