221 Miss. 352 | Miss. | 1954
This case is before us on appeal by Wallace Edison from a judgment of the Circuit Court of Forrest County affirming a judgment of the county court ordering that a 1948 Pontiac automobile belonging to the appellant and used for the unlawful transportation of intoxicating liquor be condemned and sold and the proceeds thereof placed in the county treasury.
The defendant, Wallace Edison, answered the petition, and in his answer denied that at the time of his arrest he was driving the car in a wreckless and speeding manner, or that the automobile was being used for the unlawful transportation of intoxicating liquor. The defendant later filed an amended answer in which he averred that his arrest by the above mentioned officers was unlawful, and that the search and seizure of his car was unlawful, for the reason that he was not driving the car in a reckless and speeding manner at the time of his arrest and the officers had no probable cause for stopping him on the highway and searching the car.
The case was tried at the August 1952 term of the court without a jury. The court found that the automobile was being used for the unlawful transportation of intoxicating liquor; and the court ordered that the car be condemned and sold. The court found that the Universal O. I. T. Credit Corporation were the holders of a valid lien on the car for the sum of $48.72, and the court ordered that the claim be paid out of the proceeds of the sale, and that the balance of the money be paid into the county treasury. Through inadvertence or oversight no judgment was entered upon the minutes of the
The first point argued by the appellant’s attorney as ground for reversal on this appeal is that the petition for the condemnation and sale of the automobile was insufficient on its face to support the judgment of condemnation, in that the State was not made a party to the petition. But there is no merit in this contention. The statute provides that the complaint in a case of this kind may be made by the sheriff or other lawful officer, who has seized the vehicle; and the complaint in this case was made by Clark and Jones, as constables, and was duly sworn to by them and the county prosecuting attorney. We therefore hold that the requirements of the statute were fully met in the filing of the complaint.
The next point argued by the appellant’s attorney is that the evidence upon which the judgment is based was insufficient to show a lawful arrest, and that the evidence relating to the possession of the intoxicating liquor was illegally obtained by a search of the appellant’s automobile without a warrant and without probable cause and was improperly admitted to establish the State’s case.
The evidence offered on behalf of the State was substantially as follows: W. E. Clark, Constable of Beat 3, testified that he was on patrol duty with Constable Print Jones during the early part of the night, and that he drove into U. S. Highway No. 49 at Paul Johnson’s Service Station about 9:00 o ’clock p. m. It was raining and the traffic was .heavy. As the officers headed northwardly along the highway the appellant passed them in the Pontiac automobile. “He was whipping in and
Print Jones’ testimony ivas substantially the same as that of W. E. Clark. On direct examination Jones said:
“A. * * *. It was raining, and we started on up the highway and he pulled out of line and pulled right back in ahead of us and almost hit the ear. We drove up the highway a little farther and we pulled out and went around him and he did the same thing again and that is when we taken after him and stopped him up there and pulled him over to the side of the road. ’ ’
On cross-examination Jones testified as follows:
“Q. And the only thing that attracted your attention was the fact that he had passed you, and I believe you say he cut a little too close coming back into the right lane!
“A. That’s right.
*358 “Q. Other than that he hadn’t violated any law there in yonr presence had he?
“A. No.
££Q. You had no search warrant for his automobile. Is that right?
“A. • No, sir, we didn’t have no search warrant.
“Q. You had no information that he had any whiskey in his car?
“A. We did not.
‘ ‘ Q. So, when you took out after him there you wanted to find out why he had passed you at that rate of speed?
“A. Yes, sir.
“Q. And he was driving — you were driving between fifty and fifty-five miles an hour?
“A. I’d say we was, yes, sir.
££Q. And naturally he was driving at a slower rate of speed because you passed him didn’t you?
“A. Yeh, we passed him.
“Q. So then, after he passed you the second time then you continued after him and finally run him down about the cloverleaf?
“A. That’s right.
££Q. And you pulled him off to the side of the road?
“A. That’s right.
££Q. And what was the first thing that was said to him after you stopped him there?
“A. I don’t remember. I come up on one side of the car and Bill Clark come up on the driver’s side and I believe Bill asked him what the trouble was or what was the matter — what he meant. I believe that was about the first that was said to him.
££Q. And he asked him what the trouble was and what he meant?
££A. That’s right.
££Q. All right, what else did you say?
“A. Well, he told him to get out of the car and he looked at his driver’s license.
*359 “Q. He told him to get out of the ear and he asked him for his driver’s license, and did he have his driver’s license?
“A. Yes, he did.
Í!Q. All right, what next?
“A. I was looking in the car — flashing the light back there.
“Q. You were looking in the car while Bill was asking him for his driver’s license. Is that right?
“A. Yes.
££Q. And what part of the automobile were you searching there at that time?” * * *
“A. I just looked over in the back seat.
“Q. Looked over in the back seat?
“A. That’s right.
•‘Q. All right, go ahead.
I£A. And there was ten gallons of liquor in there.
£<Q. And you found the liquor there at that time?
££A. That’s light.”
In the case of Brooks v. Wynn, Sheriff, 209 Miss. 156, 46 So. 2d 97, the Court held that the statute providing for the confiscation of vehicles used in the unlawful transportation of intoxicating liquor is highly penal and must be strictly construed against the State.
In the case of Gause v. State, 203 Miss. 377, 34 So. 2d 729, the Court held that evidence that the highway patrolman found whiskey in the defendant’s automobile, which he had pursued and stopped in order to check the driver’s license of the defendant, was illegally obtained and hence inadmissible against the defendant in a liquor prosecution, where the patrolman searched the automobile without a warrant or reason to believe that liquor was being transported therein and the defendant had committed no misdemeanor in the patrolman’s presence.
Section 8175, Code of 1942, provides that, ££Any person who drives any vehicle in such a manner as to indicate either a willful or a wanton disregard for the safety of persons or property is guilty of reckless driving.”
The facts in this case are very similar to the facts in the Gause case. The officers here did not claim that the appellant at any time drove his car at a greater rate of speed than 55 or 60 miles per hour; and in our opinion the testimony of the officers does not show that the appellant was driving his automobile' in such manner as to indicate either a willful or wanton disregard for the safety of persons or property, so as to constitute
The appellant’s attorney also argues that the judgment of the county court is void for the reason that the judgment was not entered at the term of the court during which the case was tried. But in view of the fact that the judgment must be reversed on other grounds, as stated above, it is not necessary that we consider the question raised as to the invalidity of the judgment on that account.
For the reasons stated above the judgment of the county court is reversed and judgment will be entered here dismissing the petition for the condemnation and sale of the automobile.
Reversed and judgment rendered for the appellant.
