Vaughn v. State

101 So. 439 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellant, Vaughn, was convicted of unlawTfully having intoxicating liquors in his possession. The first conviction was in the justice of the peace court, and the case was appealed to the circuit court, where the appellant was again convicted and given a fine and jail sentence. The testimony for the state was objected to on the ground that the evidence was procured by an unlawful . search and was therefore inadmissible against the defendant. The sheriff procured, a search warrant to search the automobile of one Clayton, and he and a deputy and a justice of the peace went upon a roadside and secreted themselves, having1 information that Clayton would come along said road. The affidavit described Clayton’s automobile as the place to be searched. Vaughn and Clayton were in Vaughn’s car coming along said road, and as they reached the place where the sheriff, deputy sheriff, and-justice of the peace were secreted,' which was oil the side of a steep hill where a car would necessarily have to go at a slow rate of speed, the officers rose up and started toward the automobile for the purpose of searching it, whereupon one of the men in the automobile seized something and broke the container which contained the intoxicating liquors, and it ran out in the automobile, and the sheriff and justice of the peace came up and procured a small quantity of the liquor as it ran out of the automobile.

It was admitted in the evidence that the sheriff stopped the car, and it is undisputed that the automobile searched was not the one described in the warrant. This court has held that before the evidence is admissible there must be a valid search warrant, or there must he a voluntary consent to the search. It has also been held that the warrant must describe the property to be searched with particularity. Tucker v. State, 128 Miss, 211, 90 So. 545, 24 A. L. R. 1377; Owens v. State, 133 M.iss. 753, 98 So. 235; Butler v. State, 129 Miss. 778, 93 So. 3; State v. Patterson, 130 Miss. 680, 95 So. 96; Miller v. State, 129 Miss. 774, 93 So. 2; Strangi v. State (Miss.), 98 So. 340; Taylor v. State (Miss.), 98 So. 459.

There was no evidence, except that of the officers, and this was procured in violation of the law as announced in the foregoing decisions.

The peremptory instruction for the defendant refused by the court should have been given. The judgment will therefore be reversed and the defendant discharged.

Reversed, and defendant discharged.