Opinion
No. 29414.
June 15, 1931.
1. ARREST.
Where officer when making arrest did not know that keg which defendant was carrying contained liquor and was not in possession of facts showing commission of misdemeanor, arrest was unlawful.
2. CRIMINAL LAW.
Evidence secured as result of unlawful arrest held improperly admitted in liquor prosecution.
APPEAL from circuit court of Forrest county; HON.W.J. PACK, Judge.
R.A. Wallace, of Gulfport, for appellant.
The court erred in refusing to require the witness Massengale, a deputy sheriff, to disclose the identity of the alleged informant, at whose instance it is alleged the search was instituted by the officer, and out of which this prosecution grew.
An officer making a search and seizure without a search warrant, or a warrant for the arrest of the accused, is not the final judge of the probable cause necessary to justify such search and seizure, and he must furnish the identity of his informant when demanded during the trial of a case arising out of such search and seizure.
State v. Messer, 142 Miss. 882, 108 So. 145; Hamilton v. State, 149 Miss. 251, 115 So. 427; Sellers v. Lofton, 149 Miss. 849, 116 So. 104; Hill v. State, 151 Miss. 518, 118 So. 539; Ford v. City of Jackson, 153 Miss. 616, 121 So. 278.
The court erred in admitting the testimony of the witness Massengale, a deputy sheriff, over the timely objections of the appellant, and in refusing to exclude such testimony from the consideration of the jury on the motion of the appellant.
The information from which the witness testified was obtained by means of an unlawful search and seizure.
Eli Butler v. State, 135 Miss. 885, 101 So. 193.
Geo. T. Mitchell, Attorney-General, and W.A. Shipman, Assistant Attorney-General, for the state.
The state submits that even a superficial inspection of the testimony quoted in the statement hereinabove amply discloses the identity of the informant at whose instance the officer acted.
The testimony of Massengale, if believed by the jury, and apparently they accepted it as true, was amply sufficient to warrant the verdict of guilty. The testimony on behalf of the state and the appellant was in sharp conflict. This being true, this court will not reverse the case for that reason alone.
Steward v. State, 154 Miss. 858.
Walter Patton was convicted in the county court of Forrest county, on a charge of unlawfully having in his possession intoxicating liquors and appealed to the circuit court, where the judgment of the county court was affirmed; and from the judgment of the circuit court, he prosecuted this appeal.
The state offered the testimony of a deputy sheriff to the effect that he was informed that during a certain night a load of whisky would be brought to a point at or near a certain church; that he took his informant in his car and proceeded to the designated place, and, after lying in wait for a short while, two or more men passed along Highway No. 11 in a car, similar to the one described by his informant, and turned into a side road leading to the said church; that he left his informant and followed this car, and discovered it parked near the church; that when he drove up, he saw the appellant walking away from the point where the car was parked, carrying in his arms a ten-gallon keg; that he commanded the appellant to halt and consider himself under arrest, but he proceeded several steps to a place where there were three other ten-gallon kegs, by which the appellant's brother was standing, and placed the keg with the others, and hurriedly returned to and climbed into his car; and that he shot the appellant in the back of the shoulders just as he climbed into his car.
He further testified that he shot the appellant because he thought he was going to his car to get a pistol, and that after the appellant was shot and he had taken him and his brother into custody, he searched the car, but found nothing; but that upon pursuing his investigation, as to the kegs which were setting nearby, he discovered that they contained intoxicating liquor. Upon the examination of this witness to determine whether there was probable cause for the search of the automobile, when he was asked and required to give the name of his informant, the deputy said that he had received the information that there would be a load of whisky at this place from "a negro named Red;" that he had known this man for several years, but had never heard him called by any other name than Red; that he was supposed to live a part of the time in Hattiesburg and a part in Gulfport; that he did not know whether he was a credible person, but that upon other occasions he had furnished him information that usually proved to be correct. He further testified that for two or three days before the trial of the cause he had searched for this negro Red, but had been unable to locate him.
The first contention of the appellant is that the witness' designation of his informant as "a negro named negro Red" is not a compliance with the rule announced by this court; that upon the investigation by the trial court to determine whether an officer had probable cause for the search of an automobile, and whether the evidence thus secured was competent, the court should require the witness to disclose the name of his informant. The search of the automobile here involved, which was made after the arrest of the appellant, disclosed no evidence of any violation of law, and whether the evidence thus secured was competent, the court should require the witness to disclose the name of his informant. The search of the automobile here involved, which was made after the arrest of the appellant, disclosed no evidence of any violation of law, or anything that was in any way prejudicial to the appellant; and, consequently, the question of whether or not the witness sufficiently identified his informant, or whether there was probable cause for the search of the automobile, was immaterial.
The serious question presented by the motion to exclude the evidence and grant the appellant a peremptory instruction arises upon a consideration of the legality of the arrest, and the admission of the evidence obtained as a result of the arrest. The officer had no warrant authorizing the arrest of the appellant, or the search of any of his possessions, and when he first appeared upon the scene, his first act was to effect the subjection and arrest of the appellant. By means of the arrest and subsequent search and investigation, the officer determined that the kegs in the appellant's possession contained liquor, but when the arrest was made the officer did not know the contents of the kegs, and was not in possession of facts showing the commission of a misdemeanor in his presence; consequently, the arrest was unlawful, and the evidence secured as a result thereof should have been excluded.
The judgment of the court below will therefore be reversed, and the cause remanded.
Reversed and remanded.