Opinion
No. 26942.
June 11, 1928.
1. CRIMINAL LAW. Intoxicating liquors. Defendant, prosecuted for possession of distillery, cannot complain of search of premises of which he is not owner or possessor; even if search of premises of which defendant was neither owner nor possessor was illegal, evidence of possession of distillery so obtained was admissible.
The defendant, in a prosecution for violating the law as to the possession of a distillery, cannot complain of a search of the premises where he is not the owner, or in possession thereof, and the evidence obtained by such search may be admitted against the defendant, although the search may be illegal.
2. INTOXICATING LIQUORS. Evidence that objects found were integral parts of still held to sustain conviction for possession thereof.
The evidence in this case was examined, and held sufficient to show possession of the integral parts of a still by the defendant, and that the conduct of the defendant indicated ownership, control, and possession of such parts.
APPEAL from circuit court of Smith county; HON.W.L. CRANFORD, Judge.
Homer Currie, for appellant.
I submit that the court erred in permitting the state to introduce testimony or evidence of any kind over the objections of the defendant with reference to what this search revealed or disclosed without first offering in evidence a legal and valid search warrant, or evidence to the effect that same was legally procured before the search and properly executed and had been since that time lost or destroyed and could not be had upon the trial of this case, neither of which was done. And too, there is no evidence on the part of the state that they ever had any creditable information with reference to the commission of the offense herein charged. There is not one line of testimony or evidence of any kind that would establish the fact that these officers had probable cause or sufficient information upon which to base this search. Brewer v. State (Miss.), 107 So. 376; McNutt v. State, 143 Miss. 347, 108 So. 721; King v. State, 147 Miss. 31, 113 So. 173; Gardiner v. State, 145 Miss. 210, 215, 110 So. 588; Perkins v. State, 141 Miss. 640, 107 So. 15. This is clearly a case where the evidence was beyond question insufficient to warrant a conviction of this defendant. Certainly there is no evidence of any kind that connects this defendant with the ownership, control or possession of these articles and implements which the state chooses to call the integral parts of a whisky still. Medlin v. State, 143 Miss. 856, 108 So. 177; Powers v. State, 124 Miss. 425, 86 So. 862; Brazeale v. State, 133 Miss. 171, 97 So. 525; Harness v. State, 130 Miss. 673, 97 So. 65; Anderson v. State, 132 Miss. 147, 96 So. 163; Washington v. State (Ala.), 107 So. 34; Moody v. State (Ala.), 104 So. 142; Stanley v. State (Ala.), 102 So. 245; Biddle v. State (Ala.), 99 So. 59; Harbin v. State (Ala.), 99 So. 740; Burnett v. State (Ala.), 107 So. 321; Farmer v. State (Ala.), 99 So. 59; Guin v. State (Ala.), 94 So. 788; Hanson v. State (Ala.), 96 So. 655; Knight v. State (Ala.), 97 So. 163.
I submit that in view of the errors assigned that this case should be reversed and the appellant given another trial.
Rufus Creekmore, for appellee.
Even though a search warrant ordinarily would be necessary in such a case as this, yet the defendant is in no position to complain because the evidence does not show that this still was found upon land or premises which belonged to him, or over which he had any control. Under these circumstances, defendant is not in a position to object, even though the officers had no search warrant. Lee v. City of Oxford, 134 Miss. 647, 99 So. 509; State v. Falkner, 134 Miss. 253, 98 So. 691; Ross v. State, 140 Miss. 367, 105 So. 846.
It will be noted in this case that the testimony of the officers and that of the defendant varies not even in the slightest detail. It might well be said that the defendant's testimony was a plea of guilty had it not been for the fact that he testified that he came upon the still inadvertently while looking for his hogs. Blowe v. State, 130 Miss. 112, 93 So. 377; State v. Watson, 133 Miss. 796, 98 So. 241.
For these reasons, it is respectfully submitted that no error was committed by the trial court.
The appellant was convicted in the circuit court of Smith county on the charge of having possession of the integral parts of a whisky distillery, and sentenced to a term of two years in the penitentiary.
It appears that the sheriff and some deputies had information that beer or mash was at a certain point, in the woods in the county in question. They went at night to the place, and there found some corn beer in a barrel, a trough, and a lard can, which had the indicia of having been used as a distillery. The officers secreted themselves nearby, and after daylight the appellant appeared on the scene, picked up a little bucket, which he rinsed with water from a brook or a branch near the place. He then appeared to see some tracks, and was looking at the ground in the direction from which the officers approached the still, walked in said direction from which they came a few feet, gazing intently at the ground, then turned and looked around in the direction where the officers were located, returned to the trough, pulled up some stakes with which it was fastened to the ground, and threw the trough into the nearby brook. He then returned to where the can was, which appeared to have been used as a distillery, and had picked it up, when he was called upon to hold up his hands and surrender to an arrest, which he did.
It appears from the testimony that the land upon which the still was found belonged to a man named Sherman, but that the appellant had rented some land from Sherman for cultivation.
The defendant testified that he was out looking for some hogs, and that he had been by the place once before and drunk some fermented plum juice at the barrel, and that upon this occasion there was corn mash in the barrel; that he saw the distilling outfit, and knew that Mr. Sherman did not want a distilling outfit on his land, so he moved it, and was undertaking to destroy it.
The court submitted the question to the jury as to whether the appellant was possessed of the still or its integral parts, and the jury returned a verdict of guilty.
It is first contended that the court erred in admitting the evidence procured in this manner, because the officers obtained it without a search warrant. It appears from the defendant's testimony, as well as from that of the officers, that the land on which the still was found belonged to Sherman, and not to the appellant, and therefore no right of the appellant was invaded by the search.
It is next argued that the evidence is insufficient to convict the appellant beyond a reasonable doubt, that the articles or implements mentioned were the integral parts of a whisky still.
The officers testified to the condition of the trough and can found there, from which it appears that the can had been used; that it had a top which had been sealed with mud, and had an opening for the passage of liquor distilled into a pipe.
We think the evidence was sufficient to show that the vessels and appliances found were parts of a still, within the meaning of the statute.
It is also contended that the evidence is insufficient to connect the defendant with the ownership and control and possession of the articles constituting the integral parts of a whisky still.
The facts and circumstances are sufficient, in our opinion, to show that the defendant was possessed of the outfit. He appeared there early in the morning, and was apparently making preparations for the operation of the still, when he discovered tracks made by the officers in approaching the place the night before. When he found these tracks, he again took charge of the several parts of the distillery, or was proceeding to do so, acting as though he had the right, and apparently trying to conceal the parts, so that the officers, returning, would not find them.
The evidence was sufficient, in our opinion, for the jury to infer from his acts and conduct, and all the attendant circumstances, that he was in control and possession of the still, or the integral parts thereof.
The judgment is therefore affirmed.
Affirmed.