McMullen v. Daniel ( 1933 )

On Rehearing. Our attention is called to the fact that there is a conflict in the evidence as to the time when McMullen was notified by Bishop of what Lockhart told him about liquor being handled at the Daniel place. The fact of such dispute does not justify the submission of the whole question of probable cause to the jury without an instruction of whether certain facts, if found to exist, do or do not constitute probable cause. The court must determine "what facts and whether particular facts amount to probable cause," but "what facts and whether particular facts exist, in a case in which the evidence as to the facts or any necessary particular fact is in dispute, is a question for the jury; but whether such facts amount to probable cause is a question of law for the court." Molton Realty Co. v. Murchison, supra; 38 C. J. 505 et seq.

It is also observed that sometimes the facts relied on to show probable cause or its absence are to be found as inferences from the evidence. When such evidence is susceptible of more than one reasonable inference in that respect, it is a question for the jury to find the true inference; and thereby determine the existence of an element of probable cause. But it is for the court to instruct the jury on what way the question of probable cause is thereby affected. The jury should find the fact from conflicting inferences or from conflicting evidence. But the court determines in each instance whether probable cause exists when such facts are found by the jury, and should so instruct the jury. 38 C. J. 504, 505, notes 29, 30, 31.

In our former opinion, we undertook to meet that duty by holding that the information which we mentioned as having been communicated to McMullen was sufficient to constitute probable cause, if he had no information to the contrary or reason to doubt it, and none was shown by the evidence. That conclusion was also fully sustained by the cases cited of Louisville N. R. Co. v. Stephenson, supra, and Jordan v. Alabama Great Southern R. Co., supra.

But the additional element was stated by us that he thereupon acted in procuring the search warrant. That element is also essential, and included the idea that his act must have been in such reasonable time after the information is given to justify a reasonable assumption that the unlawful conduct referred to continued to the time when the offier procured the warrant, and caused the search. This question is also one for the court as an element of probable cause. It was for the jury to find when the information was given, and whether it was creditable, when there is anything to reflect on it, but not to find whether the time was so related to the act as to show that it was probable cause for the search.

The court charged the jury correctly as to what is probable cause. But with that question the jury was not concerned. That definition is a guide to the court, not the jury. The charge left it to them to decide both law and fact.

It is our judgment that the information communicated to McMullen did not constitute probable cause for procuring the search to be made eight months or more thereafter without other information leading to a just ground to believe that it continued to the time of the search. We say eight months because in this case there is a tendency of the evidence to show that it was about eight months before the search was made that the information was given, and not for the purpose of prescribing a definite rule in that respect. This testimony was given by Bishop, who is the one who told McMullen about the matter. He says his best recollection is that he told McMullen along in January before October when the search was procured. He also says that he had at least two conversations with McMullen about it, and also one with McMullen and Wilson, a codeputy engaged in the same work, when they were all three together, but does not remember whether that was the first time he told McMullen or not. McMullen testified that the conversation occurred "a few days, a week or two, something like that" before the search. Lockhart shows by the circumstances, to which he testified, that he told Bishop about the matter at a time apparently near the occasion of the search.

In view of the conflict in the evidence, we think that we were in error in saying that defendant was due the affirmative charge after this evidence offered by defendant was given. We adhere to the conclusion that, if the information was given to McMullen more than approximately eight months before the search, it did not constitute probable cause as a matter of law, in the absence of anything to show what the status was, when the warrant was issued and executed. On the other hand, if they find that the information was given within a few days before the search, it did constitute probable cause, in the absence of anything to discredit its truth.

There is no exception to that portion of the charge which submitted the question of probable cause to the finding of the jury, nor was there a request for charges to be given which required a ruling of the court on the subject. So that, in this respect, the ruling does not show reversible error.

We have examined the other assignments, and do not find in them any reversible error.

Rehearing granted, reversal set aside, and judgment affirmed.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.