Opinion
No. 27625.
April 1, 1929.
1. SEARCHES AND SEIZURES. Defendant could not complain of unlawful search of his father's premises, where liquor he was charged with possessing was found.
Defendant could not complain of the unlawful search of premises of his father, where liquor he was charged with possessing was found, since, in order for defendant to avail himself of his constitutional right against an unreasonable search and seizure, his own premises must be invaded.
2. CRIMINAL LAW. Although corpus delicti cannot be proved alone by defendant's confession, his criminal agency may be shown by his own confession.
Although corpus delicti cannot be proved alone by defendant's confession of guilt, his criminal agency may be shown by his own confession.
3. CRIMINAL LAW. Refusing instructions covered by other instructions given held harmless.
Refusal of requested instructions, fully covered by other instructions given, held harmless.
4. CRIMINAL LAW. In prosecution for possessing liquor, testimony of officer finding whisky on defendant's father's premises, regarding information he received before making search, held hearsay.
In prosecution for possessing liquor, in which defendant claimed whisky found on father's premises was not his and that he did not know of its presence there, evidence of officer, finding whisky on father's premises, that day before search he had information defendant had gone to coast for liquor, and that before making search witness had been informed defendant had arrived at father's home from coast with whisky, which he had rolled around his father's house, held improperly admitted, since it was hearsay.
APPEAL from circuit court of Simpson county, HON. W.L. CRANFORD, Judge.
A.M. Edwards, for appellant.
The affidavit was made, and the search warrant issued for the search of the premises, etc., of Leon Roberts, and upon this the premises of Walter Roberts were searched and the said liquor found and seized. There was no affidavit made, neither was there a warrant issued for the search of the premises of Walter Roberts. Therefore said search and seizure were unlawful. Sec. 23, Const. of Miss.; Miller v. State, 129 Miss. 774, 93 So. 2. We submit that there is no competent evidence in this case that even tends to prove the guilt of appellant. It is true that witness Benson testified that he understood, Mr. Weaver to ask him, appellant, how much did he get for this whisky "when you sell it," and he said, "I didn't buy it to sell, I bought it to drink."
The corpus delicti has not been proved in this case. It might be contended by the state that the statement of the defendant that "I didn't buy it to sell, I bought it to drink" as testified to by the witness Benson was a confession of his guilt, and therefore no warrant was necessary for the search of said premises. This court said among other things in Miller v. State, 129 Miss. 774, 93 So. 2: "This court has repeatedly held that the corpus delicti must be proven aliunde a confession. A confession is not proof of the offense."
The witness Jessie Mangum was allowed to testify, over the objection of the defendant as to what he had told the sheriff in regard to the defendant having gone to the coast the day before after a load of liquor, and that a party had told him that he saw Leon Roberts, appellant, roll a keg of liquor around the house, Walter Roberts' house. This testimony was incompetent because it comes within the hearsay rule. There can be no doubt that this testimony was highly prejudicial to the interest of the defendant.
Rufus Creekmore, Assistant Attorney-General, for the state.
Counsel argue that the warrant in this case was issued for the search of the premises of Leon Roberts when as a matter of fact the premises of Walter Roberts, defendant's father, were searched, and for that reason the evidence was unlawfully obtained and was not admissible. If the premises which were searched were in fact the premises of Walter Roberts and not of Leon Roberts, then Leon is in no position to complain because none of his rights have been violated. Falkner v. State, 134 Miss. 253, 98 So. 69; Lee v. Oxford, 134 Miss. 647, 99 So. 509.
Counsel next contend that the corpus delicti was never proven in this case. I understand the rule to be that in a crime of this character the corpus delicti is established by the proof of the finding of the whisky. This whisky was in the possession of someone, and someone had committed the crime. The only question is the identity of the criminal. While it is true that the corpus delicti cannot be proven alone by the defendant's confession of guilt, yet when, as in this case, it has been proven that the crime has been committed by someone then the defendant's confession is admissible for the purpose of showing that he was the person who committed the crime. Osborne v. State, 146 Miss. 718, 111 So. 834.
Counsel next argue that the court was in error in permitting the state's witness, Jesse Mangum, to testify as to the information he received and upon which the affidavit and search warrant was based. This testimony was probably incompetent because it was hearsay testimony, yet in this particular case the action of the court was not reversible error. The defendant on cross-examination of the witness went into great detail with reference to this testimony, and after having done this, and after developing the full facts, he made no further effort to have the testimony excluded or to have the court instruct the jury to disregard this evidence. It is submitted that any error committed by the court in this respect was harmless error of which the defendant cannot complain.
Appellant was indicted and convicted in the circuit court of Simpson county of the crime of unlawfully possessing intoxicating liquor, and sentenced to pay a fine of two hundred fifty dollars and to serve a term of thirty days in the county jail. From that judgment, appellant prosecutes this appeal.
K. Thames, a deputy sheriff of Simpson county, procured a search warrant for the search of appellant's home and premises for intoxicating liquor. Pursuant to the authority conferred on him by the warrant, Thames, with two other deputy sheriffs of the county, went to the home and premises of Walter Roberts, the father of appellant. There they found appellant and some other members of his father's family. The warrant was served on appellant. The officers made a search of the premises, and in a hole near the residence there was found buried a ten-gallon keg of corn whisky. Appellant did not reside in the home of his father, but elsewhere. Appellant was arrested and taken by the officers along with the whisky in an automobile to Mendenhall and there placed in jail. One of the officers testified on behalf of the state that, while making the trip to Mendenhall, he asked appellant how much he got for the whisky when he sold it, and appellant answered that he did not buy the whisky for the purpose of sale, but bought it to drink. Appellant testified that he knew nothing about the presence of the whisky on the premises of his father; that it was not his, and he was not in possession or control of it.
The evidence of the officers making the search and finding the whisky was the principal evidence relied on by the state to convict the appellant, and was admitted by the court over appellant's objection. Appellant's objection to the evidence was upon the ground that it was secured by the search of his father's home and premises, and not appellant's; that the search warrant only authorized the officers to search the home and premises of appellant, while, as stated, the state's evidence against appellant was secured by the search of the home and premises of his father. In order for a defendant to avail himself of his constitutional right against an unreasonable search and seizure, his premises must be invaded, not that of another. He cannot complain of the unlawful search of the premises of another. Lee v. Oxford, 134 Miss. 647, 99 So. 509; Falkner v. State, 134 Miss. 253, 98 So. 691; Harris v. State (Miss.), 98 So. 349.
Appellant contends that the corpus delicti was not proven. There is no merit in that contention. The body of the crime in this case was the buried ten gallons of whisky. That was proven by the testimony of others than appellant. The question was as to the identity of the person possessing the whisky. That was shown by appellant's confession to one of the officers making the search and finding the whisky. It is true that the corpus delicti cannot be proven alone by the defendants confession of guilt, but his criminal agency may be shown by his own confession. Osborne v. State, 146 Miss. 718, 111 So. 834.
No error was committed by the court in refusing instructions requested by appellant. The two instructions, requested by appellant and refused by the court, of which appellant complains, were addressed to phases of the case fully covered by other instructions. Therefore, if they embodied correct principles of law, appellant suffered no harm by their refusal.
Over appellant's objection the court permitted the witness Mangum, who was one of the officers making the search and finding the ten gallons of whisky, to testify that the day before the search he had information that appellant had gone to the coast for a load of liquor; that he called up the sheriff of Simpson county and told him of that information; that the witness, with the other officers making the search, spent the night before the day of the search near the home of appellant's father, watching for appellant; and that before making the search the witness had been informed that appellant had arrived at the home of his father from the coast with a load of whisky which he had rolled around his father's house. As stated, appellant testified that the ten gallons of whisky was not his; that he did not know of its presence on his father's premises; that he had neither possession of it, nor control over it, and further he denied that he had stated to one of the officers making the search and arrest that he had bought the whisky to drink and not to sell. Although the body of the crime was shown without conflict in the evidence, that is not true of the issue of appellant's criminal agency. The evidence of the witness Mangum, admitted over appellant's objection, must have strongly influenced the jury against appellant on that issue. It was hearsay pure and simple, and therefore ought not to have been admitted. Appellant was entitled to have submitted to the jury on competent evidence the question as to whether or not he possessed or controlled the whisky. This was not done. We think the action of the court denied the appellant a substantial right.
Reversed and remanded.