Robinson v. State

101 So. 706 | Miss. | 1924

Sykes, P. J.,

delivered the opinion of the court.

The appellant was indicted, tried, and convicted of unlawfully having in his possession a still, and sentenced to serve a term of two years in the state penitentiary. The ■ only question necessary to be considered on this appeal is whether or not the testimony of the sheriff and other officers, which testimony was seasonably objected to, was admissible.

The testimony of the sheriff was heard by the court in the absence of a jury, and is in substance as follows: He states that he had information that the appellant was manufacturing whisky, and that it was being sold by his son-in-law Caruthers, and that on the particular night in question some of this whisky was at the home of Caruthers. Whereupon he made affidavit, and procured a search warrant to search Caruthers’ home. He and two deputies in this search failed to find any whisky, but found this appellant (Eobinson) at the home of Caruthers, lying on a bed drunk. From Caruthers’ home^ the sheriff and his deputies went to the home of this appellant; when asked why he went there he stated, “Went to see what I could find.” He had no search warrant to search the home or premises of appellant. The testimony of the sheriff then shows that, after entering the premises of appellant, he could smell whisky or mash. There was no one at appellant’s home, and the officers went in the house and saw some whisky in there. "Whereupon the sheriff left the two officers on the premises on guard, and he immediately proceeded to the home of the county attorney, and from there he and the county attorney went to a justice of the peace, and the sheriff made an affidavit -for a search warrant to search the home of the appellant. This occurred about twelve or one o ’clock in the morning’. To the jiistice of the peace the sheriff related the facts and circumstances of the matter as we have above detailed them.

Upon the return to the home of the appellant the officers then made a thorough search of the premises, residence, and outhouses. Previous to this time they had searched nothing except a part of the house. The still was found in an outhouse. '

The court held that these officers could testify about the search made after the procurement of the search warrant, but could not testify about anything they found in the first search. The appellant contended that all of the testimony was inadmissible. At the conclusion of the testimony a peremptory instruction was asked by the appellant.

It is the contention of the state that the second search was lawful because the sheriff before the first unlawful search had information upon which he was warranted in making an affidavit, and the justice of the peace was warranted in issuing same. It further contends that, since the outhouse was not unlawfully searched in the first instance, it was lawful to search it under this search warrant.

"W"e neglected to state that in the affidavit of the sheriff he stated that he had information that this appellant had in his possession intoxicating liquors.- We cannot agree with the contention of the state in this case. The sheriff in his testimony states that his original information was that the appellant was making whisky and Caruthers was selling it for him; that on this particular occasion the whisky was in the possession of Caruthers, and he made affidavit and obtained a search warrant to search the home of Caruthers. Therefore at that time with the information before him he concluded that whatever whisky these two people were jointly interested in was in the possession of Caruthers. After searching Caruthers’ home, he states that he concluded to go to the home of the appellant and see what he could find. In this home he found whisky, and immediately, in the dead of night, he proceeded to the city of Greenwood, and made affidavit for a search warrant to search for whisky, not for a still. He told the justice of the peace the entire transaction of the night. From this testimony we therefore unhesitatingly state that the information upon which the sheriff acted, and which information was conveyed to the justice of the peace, was what he had obtained on his unlawful search of the premises and home of the appellant without a search warrant. In fact, at the very time that this affidavit was made, the sheriff was really in charge of the premises of the appellant. On the unlawful search he took possession of them, and when he left there to procure a search warrant he left his deputies in charge. There was no abandonment by him of the unlawful possession he had taken of these premises without a search warrant. The appellant and his family were not at home. In other words, there was never an abandonment of the unlawful act, but merely a continuation of it after the attempted procurement of a lawful search warrant.

“Evidence obtained under a second search warrant, based on evidence illegally disclosed under a first invalid warrant, is inadmissible, and should be excluded upon objection.” Blakemore on Prohibition, p. 361; U. S. v. Boasberg (D. C.), 283 Fed. 305.

The legal question here presented is similar to that discussed in the ease of Jordan v. State (Miss.), 100 So. 384. In that opinion it is stated:

“The search of appellant’s home was begun in an unlawful manner, without a search warrant, and completed under a search warrant based upon the information so unlawfully obtained.”

We therefore conclude, first, that the testimony shows that the sheriff in making this affidavit acted upon the information obtained in the unlawful search; second, that the sheriff unlawfully seized the premises of the appellant and held them unlawfully through the entire transaction; that, there was no abandonment by him of this unlawful seizure. In legal effect the obtaining of the search warrant was an attempted evasion of the law. No part of this search was lawful. Consequently all of this testimony was inadmissible.

There being no other testimony upon which to sustain a conviction or to prove the corpus delicti, it follows that the judgment of the lower court must be reversed and the peremptory instruction, requested by the appellant given in this court.

Reversed, and judgment for appellant.