Toliver v. State, 98 So. 342

Toliver v. State

98 So. 342 | Miss. | 1923

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted, and convicted of having in his possession more than one quart of spirituous and intoxicating liquor,, and sentenced to pay a fine of one hundred dollars, and sixty days in jail, from which conviction he appeals here. The facts are: The sheriff had a warrant for the arrest of Toliver for the sale of a truck upon which there was a lien issued by a justice of the peace of Calhoun county, in which county Toliver formerly lived, and from which county he moved to Quitman county. The sheriff/ also having information that Toliver was unlawfully possessed of or handling intoxicating liquor, procured a search warrant from the mayor of the town of Lambert to search Toliver’s premises. The deputy sheriff, having such warrants, accompanied by the town marshal of Marks, Miss., proceeded to the residence of Toliver, but not finding him at home did not search the house and premises under the search warrant so obtained, but was returning and met Toliver in the road on the plantation in which he lived, in an automobile accompanied by a negro, proceeding towards home, and the officer arrested Toliver upon the warrant, charging him with disposing of the truck, upon which there was a lien, *794and removed him from his car, took possession of the car, and on examination found in the hack of the car, in an open box in the rear of the car, a sack containing intoxicating* liquors, one vessel containing one gallon,-and two others containing a half gallon each. When the officer had located these intoxicating liquors, Toliver secured a piece of iron, and started to break the vessels containing the liquors, and did break two of them, when hb was knocked down by one of the officers, and prevented from breaking the • other. An affidavit had been made against Toliver for having possession of these intoxicating liquors, and on the trial the evidence above stated was offered and admitted over the objection and exceptions of the defendant. The evidence of the officers and the unbroken container with the liquor therein was the only evidence produced by the state.

It is insisted here that this evidence is not admissible, because' it was taken by force from the appellant under the warrant under which he was arrested, and that, the officers had no right under such warrant to search the car and seize the liquor, and that the evidence obtained by so doing was not admissible. Counsel for appellant in his brief says:

“It seems to be a general rule that an officer legally arresting an offender has a right to search his person and take money or goods connected with crime charged or goods identifying the criminal or weapon or things which would be helpful in an effort to escape; but the rule has never been extended any further than that; and of course the whisky did not fall within either category.”

It will be noted from the statement of facts that the automobile seized was one in which the defendant was riding, and one which he had under his control at the time. The rule is, generally speaking, that an officer making the arrest has a right to search the defendant, .and take from his possession any evidences of the crime for which he was arrested, or any property which he may not *795lawfully possess, or take from Ms person auytMug’ wMcli would aid Mm in making Ms escape.

We think the officer had a right under the facts stated to take charge of the automobile, both because he could not leave the automobile in the road where it was found without jeopardizing the property and its contents. We also think the automobile in which the appellant was riding would materially aid in his escape should an opportunity to- escape present itself, and it was therefore lawful for the officers, under the circumstances stated, to take charge of the automobile, and to examine it, and to take charge of the contents, for the purpose of safe-keeping, such as might be lawful, until some disposition could be made of it, and to retain control of the atitomobile for such time as was necessary to prevent its being used in aid of his escape, should such opportumty present 'itself. The question of the right to search when a lawful arrest is made has been discussed in the following cases: People v. Cona, 180 Mich. 641, 147 N. W. 525; Smith v. Jerome, 47 Misc. Rep. 22, 93 N. Y. Supp. 22; State v. Hassan, 149 Iowa, 518, 128 N. W. 960; State v. Mausert, 88 N. J. Law, 286, 95 Atl. 991, L. R. A. 1916C, 1014; Owens v. Way, 141 Ga. 796, 82 S. E. 132, L. R. A. 1915E, 399. And the admissibility against the defendant of documents or articles taken from him was also discussed in the notes to 59 L. R. A. 467; 34 L. R. A. (N. S.) 58; L. R. A. 1915B, 834, and notes.

We think the evidence was admissible, and the conviction must be affirmed.

Affirmed.