No. 23042 | Miss. | Sep 15, 1922
delivered the opinion of the court.
Henry Patterson was charged by an affidavit before a justice of the peace for unlawfully having control or possession of intoxicating liquor against the peace and dignity of the state, and was by the justice of the peace convicted and sentenced to pay a fine of one hundred dollars and costs, from which an appeal was prosecuted to the circuit court. In the circuit court an agreed statement of facts was made in which it was agreed that two officers had located a jug of whisky, and had hidden themselves for the purpose of apprehending the owner thereof, and while they were in hiding the defendant and another person approached within ten or fifteen steps of where the whisky was hidden, and the defendant said to the other party, “Where is it?” And the other party told him, “Around there somewhere.” About this time the officers appeared on the scene and arrested the defendant and the other party .without 'warrant, and took from the person of the defendant a bottle of whisky concealed in a paper sack which the defendant was holding in his hand .when the officer approached him. The' jug of whisky which was being watched was not found on the defendant, and the whisky he was tried for having in his possession is that taken from him by the officers, and this search and seizure on the part-of the officers were without the consent and over the protest of the defendant at the time, and the defendant had filed a plea setting up his rights under the Constitution to protect him against unlawful search and seizure. The circuit court thereupon said that in Tucker v. State, 128 Miss. 211, 90 So. 845, it was held that such evidence could not be used when obtained by unlawful search and seizure; that, while the court felt that the decision was wrong in that case, and carried the wheels of justice back at least one hundred years, and that
It is urged in the brief for the state, which sets out the opinion of the circuit judge, that it was error to quash, and that the Tucker Case, supra, is in conflict with the weight of authority in other states. We think the Tucker case was rightly decided, and it has been followed in several other cases by this court, and under that case the evidence obtained by an unlawful search and seizure is not admissible. This malíes the constitutional protection of the citizen effective. It is better that the guilty escape punishment in particular cases than it is to strike down the constitutional safeguards established to protect the rights of citizens. . We are not impressed with that progress that must be made at the expense of constitutional guaranties.
Affirmed.