105 So. 846 | Miss. | 1925
Lead Opinion
The appellant, Curley Ross, seems to have been a porter for the Gilmer Hotel, at Columbus, Miss., and the officers had suspected that he was delivering whisky to some of the guests in the hotel, and the policeman watched him one night when he drove up in his automobile to a back entrance of the hotel and stopped. The officer saw Ross and another negro porter leave the car and take with them a suit case, which they placed on the ground near the car and left. Whereupon the officer approached the suit case and took it in charge, and after the arrival of another policeman they opened it, and found therein two gallons of whisky. The officers then took the suit case and the liquor and went into the hotel, where they arrested the appellant, Ross, and the other negro porter, by the name of Stevens, and charged them with having liquor in their possession.
At the trial of the case the appellant took the witness stand in his own behalf and testified positively that the *371 suit case containing the liquor was not his, nor was it ever in his possession, nor had he ever seen this suit case before he saw it at the trial. In short, he denied having any knowledge or concern whatsoever with the suit case seized by the officers. He admitted that it was his car, and that he got out of it on the night in question and spoke to the policeman as he passed him at the place where the suit case was said to have been seized by the policeman, but that he knew nothing whatever about the suit case. Of course, this testimony was in conflict with that of the officer, who said he saw him in possession of the suit case with the liquor in it on the night of its seizure and the arrest of the appellant.
When the state rested its case in the lower court, a peremptory instruction to acquit the defendant was requested, but refused by the court. One of the grounds upon which the appellant's discharge was asked was that the testimony of the officer was inadmissible, because the suit case had been seized and searched without a search warrant therefor. When the request for the peremptory instruction was denied by the court, the appellant then took the witness stand in his own behalf, and denied possession, ownership, or knowledge of the suit case at the time it was seized and searched by the officer.
Now the question presented is whether the appellant can assert his constitutional right to protection against search of his private property without a warrant, when, at the same time, he swears the private property, to-wit, the suit case, was not his property, was not in his possession, that he did not own it, and had never seen it before. Can he claim protection against unlawful search and seizure of some other person's property, or will he be denied the right to have the evidence against him excluded, on the ground that it was obtained by an unlawful search of his suit case, when, in fact, he says he did not have such suit case?
We are of the opinion that the appellant cannot invoke the protection of the law against search and seizure *372 without a warrant, when he at the same time testifies that the thing which was unlawfully searched by the officer was not his property nor in his possession. We think this would be a species of "juggling" with the truth in a way calculated to embarrass the administration of justice. Such a defense is so inconsistent as to be unavailable. Surely, if he did not have possession of the property that was unlawfully searched, then he has no complaint, nor is he concerned with whether the officer was lawfully authorized to seize and search the property of some other person. And that is exactly the position the appellant places himself in on this appeal. He says, in effect: "The suit case was not mine. I never saw it, and am not concerned with it. Nevertheless, if you say that I had possession of it, then I claim it as mine, and the search of it was unlawful, and you cannot introduce evidence against me that you secured by the unlawful search." The fatal inconsistency cannot escape observation.
If the appellant had also rested his case when the state rested, then the appellant might have, though we do not decide, successfully presented his contention as to the admissibility of the testimony obtained by the officer in the search of the suit case; for then the question would have been whether the appellant was in possession of the suit case containing the liquor when the officers seized it, or whether the appellant had abandoned the possession of it when he took it from the car, and set it out upon the ground in the dark and left it. If it was voluntarily abandoned, then, of course, the officer would need no warrant to search it; but if it was not abandoned, but had been set there on the ground temporarily, while the owner stepped away for some reasonable purpose, then the suit case would have been in the possession of the owner at the time it was seized by the officer, and, under such circumstances, the officer would have been required to first obtain a warrant for the search. For instance, if a passenger, when waiting on the platform *373 to catch a train, sets his grip down on the platform and strolls away from it temporarily, this would not be an abandonment by the owner, and we apprehend a warrant would be necessary before a search of it could be lawfully made.
However, it is unnecessary to decide the last question discussed above, because the appellant disclaimed any interest or concern with the suit case here in question, and, that being true, he cannot complain of the unlawful search and seizure of the hand baggage not owned or possessed by him, and therefore the testimony of the officer became admissible against appellant after the latter testified.
In viewing the case as a whole, we have reached the conclusion that the judgment of the lower court should be affirmed.
Affirmed.
Addendum
"We are of the opinion that the appellant cannot invoke the protection of the law against search and seizure without a warrant, when he at the same time testifies that the thing which was unlawfully searched by the officer was not his property nor in his possession," — and then says: "That assumes that appellant is estopped from calling on the protection of the law of search warrant, because he denies the ownership of the suit case. This point is handed straight to the court for its decision; that is, the court is putting on this defendant the estoppel that properly belongs to the state. This man cannot be guilty unless this suit case was his property. No juggling of words can get around this proposition, and this court can only sustain conviction upon the fact proved that the suit case was his property. Now, if *374 the suit case was his property, most certainly his property rights arose, and there was no right of seizure unless by search warrant, and there was no search warrant, and it is submitted that his rights are not to be determined and concluded by his contention that the suit case was not his property. The rights of this defendant are based upon facts, not upon words, and the fact held by this court, and necessary in order to sustain his conviction, is that the suit case was his property."
This is specious, but fallacious. The defendant may waive constitutional rights, and he make take a position inconsistent with the assertion of such rights. In United States Fidelity Guarantee Co. v. State,
In the case of Lee v. City of Oxford,
When the defendant solemnly swore that the property was not his property, he eliminated the search and seizure question from the case, and the case then stood before the jury upon the testimony of the officer and the defendant, as to whether the property belonged to the defendant. It is familiar learning that an oath, deliberately and solemnly taken, will estop a person taking the same from asserting the contrary thereafter. Certainly the appellant waived his right to claim the search was unlawful when he solemnly and deliberately testified, on oath, that the property was not his property.
Having taken this position, he must stand upon it, and suggestion of error will be overruled.
Overruled.
