Summary
In Pickle v. State, 172 Miss. 563, 160 So. 909 (1935), we held that an anonymous letter to the sheriff through the mail did not constitute probable cause for a search warrant of the defendant's premises.
Summary of this case from Rooks v. StateOpinion
No. 31530.
April 29, 1935.
1. INTOXICATING LIQUORS.
Information in anonymous letter, received by sheriff through post office, held not probable cause for search of land for still.
2. INTOXICATING LIQUORS.
Search of land, rented to brother of one accused of operating still, discovered thereon by officers on either accused's land or rented land of which he had right of possession at time, held unlawful.
3. CRIMINAL LAW.
Refusal of defendant's request for peremptory instruction, challenging sufficiency, but not competency, of evidence erroneously admitted, held not error, though verdict of conviction cannot be sustained without such evidence.
APPEAL from the circuit court of Neshoba county.
HON. D.M. ANDERSON, Judge.
Homer Pickle was convicted of manufacturing intoxicating liquor, and he appeals. Reversed and remanded.
A.B. McCraw, of Philadelphia, for appellant.
The information, in order to constitute probable cause, must be specific as to the place and must be so direct as to make a search unnecessary; the information must be such as would justify the issuance of a search warrant, if one should be requested.
Lenoir v. State, 159 Miss. 697.
From the testimony it is evident that the officers could not have received a search warrant had they applied for one on the information obtained as it was too vague, indefinite and uncertain to justify the issuance of a warrant.
Section 23 of the Constitution; Holston v. State, 137 So. 501.
A search warrant is not issued except on information amounting to probable cause, and mere rumor is not sufficient to constitute probable cause.
Elardo v. State, 164 Miss. 628; Grau v. U.S., 53 S.Ct. 38, 40, 77 L.Ed. 212; Falkner v. State, 134 Miss. 263, 98 So. 691; Giles v. U.S., 284 F. 208; Wagner v. U.S., 8 F.2d 581; Steele v. U.S., 267 U.S. 498, 504, 69 L.Ed. 757, 45 S.Ct. 414; Smith v. State, 160 Miss. 56, 133 So. 240; Lenoir v. State, 159 Miss. 697, 132 So. 325; Patton v. State, 160 Miss. 274, 135 So. 352; Walters v. State, 143 So. 847.
The information was not credible and should not have been admitted by the lower court.
Gardner v. State, 110 So. 588; McNutt v. State, 143 Miss. 347, 108 So. 721; Mapp v. State, 144 So. 825; Davis v. State, 110 So. 447.
W.D. Conn, Jr., Assistant Attorney-General for the state.
The state submits that an anonymous letter, such as the one referred to in this record, is not sufficient to constitute probable cause for a search without a warrant. Such information must come from a reliable source, a credible person.
Mapp v. State, 148 Miss. 739, 114 So. 825; Hamilton v. State, 149 Miss. 251, 115 So. 427; Ford v. City of Jackson, 153 Miss. 616, 121 So. 278; McNutt v. State, 143 Miss. 347, 108 So. 72; Elardo v. State, 164 Miss. 628, 145 So. 615; Norman v. State, 146 So. 637.
Conceding that there was no probable cause for a search without a warrant, the question yet remains whether the defendant is in a position to complain of an unlawful search. If the record does not reveal that no right of his has been invaded, it seems that he would have no right to complain now.
It has been held by this court that the eye cannot commit a trespass provided the owner of that eye is in a place where he has a right to be.
White v. State, 159 Miss. 503, 132 So. 599; Goodman v. State, 158 Miss. 269, 130 So. 285; Daniels v. City of Gulfport, 146 Miss. 517, 112 So. 686.
It seems to me that the true inquiry here would be not whether the still was on or off the "leased" premises, but whether the officers, at the time they beheld the still, were trespassers on some possession of accused.
If the officers, at the time they saw the still, were trespassers, then appellant's contention here would be correct.
Davis v. State, 110 So. 447.
However, there is not one syllable of testimony in this record to show that the officers, at the time they first saw the still, were on any land or possession of the accused, either by ownership or otherwise, and in the absence of such proof, no right of accused has been shown to have been invaded. The fact of the business is there was never any objection made at the time of the trial that the officers were trespassers at the time they first saw the still, but only that the still, itself, was shown to have been set up on premises in possession of accused. No objection having been made on this ground, it cannot be raised here for the first time.
Peters v. State, 158 Miss. 530, 130 So. 695; Marley v. State, 109 Miss. 717, 69 So. 210; Conwill v. State, 147 Miss. 118, 112 So. 868; Boutwell v. State, 165 Miss. 16, 143 So. 479; Polk v. State, 167 Miss. 506, 142 So. 480; Cofer v. State, 158 Miss. 493, 130 So. 511.
It matters not whether the trial court gave the wrong, insufficient, or no reason at all for this ruling, for if the right conclusion results no error can be predicated on his ruling.
Carter v. State, 167 Miss. 331, 145 So. 739.
The appellant was convicted of manufacturing intoxicating liquor. The evidence on which he was convicted was given by the sheriff and his deputies, who were searching the land in the neighborhood of the still when they discovered it and saw the appellant assisting in the operation of it. This evidence was objected to on the ground that it had been unlawfully obtained.
In support of the competency of the evidence, the state says: (1) That the sheriff acted on probable cause; (2) that the still was not located on land owned by or to which appellant had the right of possession; and (3) that the sheriff and his deputies were not on such land when they saw the still and the appellant thereat.
The information on which the sheriff acted was an anonymous letter received by him through the post office. This information was not such as to constitute probable cause for the search.
The land on which the still was located was south of the public road, and was owned by Smith. This land was joined on the south by land owned by the appellant. Smith rented his land to the appellant's brother, S.E. Pickle, who lived on the appellant's land. Under a verbal agreement between them, the appellant and his brother used the Smith land in common; the appellant paying one-half of the rent therefor. The still was located on the land rented from Smith, and it seems reasonably clear from the evidence that the sheriff and his deputies, when they discovered the still and saw the appellant thereat, were on either the land owned by the appellant or that rented from Smith, to which he had the right of possession. The search was therefore unlawful.
The trial judge in admitting the evidence expressed a doubt as to its competency, which doubt would probably have been removed had he had before him, as we have, the evidence after it had been transcribed by the stenographer.
The appellant requested the court below to instruct the jury to return a verdict in his favor, but it refused so to do. He now says that we should hold this ruling of the court to have been wrong, and should reverse the judgment and render one here discharging him. The request for this peremptory instruction challenged simply the sufficiency of the evidence that was admitted, but not its competency. Consequently, the court below committed no error in refusing the instruction. It is true that without the wrongly admitted evidence the verdict cannot be sustained, but for aught we know, the state, had the evidence been excluded, might have introduced other evidence to the same effect.
Reversed and remanded.