Holmes v. State, No. 25766.

No. 25766. | Miss. | Feb 21, 1927

^* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 570, n. 90; p. 874, n. 99; p. 885, n. 63; p. 926, n. 62; 17CJ, p. 371, n. 49, 51; Intoxicating Liquors, 33CJ, p. 667, n. 27; p. 679, n. 51, 54, 55; p. 732, n. 93; p. 786, n. 43; Statutes, 36Cyc, p. 1060, n. 76. As to sufficiency of showing of probable cause for search for intoxicating liquor, see annotation in 3 A.L.R. 1517; 13 A.L.R. 1318; 27 A.L.R. 742; 39 A.L.R. 835; 41 A.L.R. 1539; 24 R.C.L. 707; 3 R.C.L. Supp. 1383; 4 R.C.L. Supp. 1552; 5 R.C.L. Supp. 1295; 6 R.C.L. Supp. 1434. The appellant, T. Bell Holmes, was indicted by the grand jury of Leflore county, on a charge of unlawfully having in his possession and under his control more than one quart of intoxicating liquor. He was tried and convicted of this offense, and sentenced to pay a fine of two hundred fifty dollars and to serve a term of ninety days in jail, from which conviction he has appealed to this court.

The sheriff and his deputy testified, in substance, that they received information from Mr. Cooper, the manager of the Holly Grove plantation, and from Dr. Kelly, that whisky was stored in a cotton house located on the side of the public road on the Holly Grove plantation, and if they would be diligent they could find the parties who owned the liquor; that they went to the place and secreted themselves in another cotton house on the opposite side of the public road, which was about seventy-five feet away from the one in which the intoxicating liquor was stored; that, after waiting about two hours, the appellant and another party drove up in an automobile and stopped in the road in front of the cotton house; that these parties went into the cotton house and brought three five-gallon cans out to the car; that the appellant placed one of these cans in the car, and was in the act of putting the other two cans into the car when they closed in on them and arrested the appellant and his partner, searched the car, and secured the can of whisky therefrom, as well as the two cans sitting by the car. The deputy sheriff testified that, when he first went to the place, he looked into the cotton house and saw the cans therein, but both officers testified that they had no actual knowledge of the contents of the cans until they opened them after the appellant had been arrested.

At the trial of the cause, after both sides had announced ready for trial and before any testimony had been offered, the appellant filed a motion to suppress the evidence and quash the indictment against him on the ground that the state proposed to introduce against him, at the trial of the cause, certain intoxicating liquors taken from him by means of an unlawful arrest and search and seizure, in violation of his rights under section 23 of the Constitution of 1890, that he was neither guilty of a felony nor a misdemeanor committed in the presence of the officers arresting him, and that all the evidence obtained by said officers by reason of the said illegal arrest and search and seizure was highly prejudicial to his rights and inadmissible on the trial of the cause. The appellant presented this motion to the court, and requested a ruling thereon, but the trial judge announced that he would reserve his ruling and would rule thereon at the proper time in the course of the trial. Thereupon the trial proceeded, and, when the testimony as to the finding of the whiskey, as well as the whiskey itself was offered, the appellant interposed an objection, which was overruled. When the testimony of these witnesses, as to the information upon which they acted, was offered to show probable cause for the search of the automobile, seizure of the whiskey, and arrest of the appellant, an objection thereto was made and overruled, but the appellant did not request the court to conduct the examination out of the presence and hearing of the jury to determine the competency of this testimony.

The appellant assigns as error the failure of the court to exclude the evidence and direct a verdict of acquittal on the ground that the evidence had been secured by an unlawful arrest and search and seizure. The information communicated to these officers that whiskey was stored in this cotton house, in connection with the fact that appellant was moving the containers from this house in the nighttime and placing them in an automobile on the public highway, was probable cause to warrant the search of this automobile; and the fact that, as an incident to the search and seizure, the appellant was arrested, does not render inadmissible the evidence secured by the search; and we do not think there was error in admitting this evidence.

The appellant also assigns as error the refusal of the court to hear and pass upon his motion to suppress the evidence before beginning the trial on the merits, and the failure of the court to conduct a preliminary examination out of the hearing of the jury on the question of probable cause. The question of the competency of evidence, objected to on the ground that it was secured by an illegal search and seizure of an automobile, or whether there was probable cause for such search, is one for the trial judge to pass upon and decide. McNutt v. State,143 Miss. 347" court="Miss." date_filed="1926-06-07" href="https://app.midpage.ai/document/mcnutt-v-state-3514905?utm_source=webapp" opinion_id="3514905">143 Miss. 347, 108 So. 721" court="Miss." date_filed="1926-06-07" href="https://app.midpage.ai/document/mcnutt-v-state-3514905?utm_source=webapp" opinion_id="3514905">108 So. 721; Ben Holley v. State, ___ Miss. ___,111 So. 139" court="Miss." date_filed="1927-01-31" href="https://app.midpage.ai/document/holley-v-state-3520790?utm_source=webapp" opinion_id="3520790">111 So. 139. It is not error, however, for the trial judge to refuse to hear and pass upon a motion to suppress such evidence before the trial begins and before such evidence is offered. Before the trial begins, the court cannot know or determine what evidence may be offered, and the trial judge should not be required to go through the useless formality of conducting an inquiry to determine the competency of testimony that may never be offered at the trial. When such evidence is offered and proper objection interposed, it then becomes the duty of the trial judge to pass upon and decide the question of its competency; and where, in order to determine its competency, it becomes necessary to determine whether there was probable cause for the search and seizure, the examination of the witnesses as to probable cause should be conducted in the absence of the jury, if the defendant so requests; but, where the defendant does not request that this preliminary examination be conducted in the absence of the jury, he will be held to have waived this right. No such request was made in this case; consequently, the appellant cannot now complain of the fact that the testimony as to the existence of probable cause was heard in the presence and hearing of the jury.

The appellant demurred to the indictment on the ground, among others, that chapter 210, Laws of 1922, violates section 61 of the Constitution of 1890; and upon appeal he assigns as error the failure of the court to hold this statute unconstitutional.

Section 2 of chapter 189, Laws of 1918, provides that it shall be unlawful for any person to have, control, or possess in this state any intoxicating liquor of any kind; while section 17 of the act provides that, upon conviction of such offense, the defendant shall be punished by a fine of not less than one hundred and not more than five hundred dollars, or by imprisonment in the county jail not more than thirty days, or by both said fine and imprisonment. Section 1 of chapter 210, Laws of 1922, provides that any person convicted of having more than one quart of whisky, or any other intoxicating drink in his possession shall be sentenced to serve not less than thirty nor more than ninety days in jail, in addition to the money fine prescribed by law. Under chapter 189, Laws of 1918, it is made unlawful for any person to control or possess any quantity of intoxicating liquor, and a penalty therefor is thereby fixed. Section 1 of chapter 210, Laws of 1922, attempts to materially increase the penalty for possessing such liquors in quantities of more than a quart, and to withdraw from the trial judge the discretion to impose a term of imprisonment in each case of less than thirty days. This section, however, is not complete on its face, and it does not create and provide for the punishment of a new offense. In our opinion, it was intended merely to amend section 17 of chapter 189, Laws of 1918, which provides punishment for the possession of intoxicating liquors. It refers to the former statute for the imposition of the fine, and in that regard its language is identical with that of section 2 of the same act which we have this day, in the case of Buford v. State, 111 So. 850" court="Miss." date_filed="1927-02-21" href="https://app.midpage.ai/document/buford-v-state-3518829?utm_source=webapp" opinion_id="3518829">111 So. 850, held to violate section 61 of the Constitution, which provides that "no law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length." The question of the constitutionality of section 1 of this act is therefore ruled by the case of Buford v. State, supra, and this section must likewise be held void. The demurrer to the indictment, however, was properly overruled, as the indictment is perfectly valid under section 2 of chapter 189, Laws of 1918, and, upon a conviction thereon, the punishment provided by that chapter may be imposed. In so far as it imposes sentence on the verdict, the judgment of the court will therefore be reversed, and the cause remanded for a new sentence, but in all other respects it will be affirmed.

Affirmed in part, and reversed in part.