Opinion
No. 41294.
October 26, 1959.
1. Criminal law — searches and seizures — evidence — defendant not entitled to avail of constitutional privilege against unlawful searches and seizures.
Where defendant was charged with possessing a whiskey still on land owned by his father and it was not shown that defendant leased or had right of possession or control of land where search was made and still was found, defendant was not entitled to object to introduction of evidence found in search on ground that search warrant was void.
Headnote as approved by Gillespie, J.
APPEAL from the Circuit Court of Newton County; O.H. BARNETT, Judge.
H.C. Stringer, Jackson, for appellant.
I. The search was invalid and evidence obtained thereby was inadmissible. Brooks v. State, 209 Miss. 150, 46 So.2d 94; Tucker v. State, 128 Miss. 211, 90 So. 845; Turner v. State, 133 Miss. 738, 98 So. 240.
II. The premises upon which the still was found was rented and controlled by appellant.
III. The verdict of the jury is contrary to the overwhelming weight of the evidence.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The evidence is ample to sustain the verdict of the jury in this case. Appellant was positively identified by the sheriff and his deputy as having been seen in the woods operating the still and his alibi evidence was completely refuted by the testimony of Mr. Williams.
II. The search was made on the land of appellant's father and appellant has no standing to raise any question with respect to a search on land not his own.
III. One not the owner nor having any possessory rights has no standing to question the validity of a search. Lee v. Oxford, 134 Miss. 647, 99 So. 509; Pickett v. State, 155 Miss. 386, 124 So. 364.
Appellant was convicted of possessing a whiskey still.
Walter Walker, appellant's father, owned two contiguous forty acres of land in Newton County. The sheriff obtained a search warrant describing the eighty acres of land and directing the sheriff to search the said property, and designated Walter Walker as the person believed to be the guilty party. The officers went on the land before daylight and saw appellant working about the still but did not then apprehend him because he fled. The search warrant was thereafter served on Walter Walker and appellant was subsequently arrested. Walter Walker was not charged.
(Hn 1) The only question of sufficient importance to justify discussion is the legality of the search. Appellant says the search warrant was void for reasons not necessary to state. The land where the still was found was owned by Walter Walker, appellant's father. Appellant also lived on the land. The still was found a quarter of a mile or more from appellant's house. Appellant denied any ownership of the land where the still was found, and he said he did not know whether it was on his father's land. It is not shown by what right he occupied the house where he lived. There is a suggestion in the record that appellant cultivated some of this land, but whether as tenant, sharecropper, or as a laborer, is not shown. There is no evidence in the record to show that appellant owned, leased, or had the right of possession or control of the land where the search was made and the still was found.
It is a settled rule in this State that an accused may not object to the introduction of evidence on the grounds that the search was without warrant or that the warrant was invalid, unless it is shown that the defendant was in possession or had the right of possession or control of the premises searched. Kalkner v. State, 134 Miss. 253, 98 So. 691; Lee v. City of Oxford, 134 Miss. 647, 99 So. 509; Ross v. State, 140 Miss. 367, 105 So. 846; Pickett v. State, 155 Miss. 386, 124 So. 364; Cofer v. State, 158 Miss. 493, 130 So. 511; McLemore v. State, 178 Miss. 525, 172 So. 139.
There is no other question deserving of comment. The evidence fully justified the jury in finding that the two officers saw appellant actively engaged in making whiskey with the still.
Affirmed.
McGehee, C.J., and Kyle, Arrington and Ethridge, JJ., concur.