Canteberry v. State , 142 Miss. 462 ( 1926 )

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 571, n. 93; Intoxicating Liquors, 33CJ, p. 674, n. 80; p. 679, n. 45, 56; On admissibility of evidence obtained in wrongful search, see notes in L.R.A. 1915B, 834; L.R.A. 1916E, 716; On admissibility of evidence obtained by illegal search and seizure, see notes in 24 A.L.R. 1408; 32 A.L.R. 408; 41 A.L.R. 1145; 10 R.C.L., p. 933; 2 R.C.L. Supp., p. 1112; 4 R.C.L. Supp., p. 679; 5 R.C.L. Supp., 572. J.C. Canteberry appeals from a conviction on a charge of having intoxicating liquor in his possession.

The decisive question in the case is whether or not the testimony of the officer who made the search and found the liquor was admissible in evidence against the accused at the trial. To put it in different words, Does the case come within the rule announced in the Tucker case, 90 So. 845, 128 Miss. 211, 24 A.L.R. 1377, which holds that testimony secured by an unlawful search is inadmissible in evidence?

The story of the case may be briefly told as follows: The appellant, Canteberry, rode his horse into the town of Kilmichael and hitched him to a rack in the public square. The city marshal, one Mr. Murphy, saw Mr. Canteberry get off of his horse. When he got off of his horse he was staggering as if somewhat under the influence of liquor. After Canteberry had left his horse to go to a store and transact some business, Murphy approached the horse, and claimed to have smelled intoxicating liquor as he got near the horse. Mr. Canteberry had left a bundle, which was a jumper folded together, tied to the horn of his saddle. Murphy testified that he saw the imprint of a bottle in the jumper, and he took the jumper, searched it, and found a bottle of whisky therein. Murphy had no warrant to search the jumper, nor any other possession of Canteberry, nor did he have any cause to arrest him.

Mr. Canteberry soon returned to his horse, got on him, and rode home, whereupon he discovered that some personal articles he left in the jumper were missing; so he rode back to town and asked the marshal if he had seen anything of his mail he left in the jumper package, whereupon the marshal proceeded to charge him with having intoxicating liquor in his possession. Canteberry denied the charge, but was convicted upon the testimony of Murphy, which was secured without a search warrant, as stated above. This testimony was objected to at the trial.

We think this case comes within the rule announced in theTucker case, supra. The jumper was folded and tied together, and was hanging to the horn of appellant's saddle. It was a package, or we may say it was a bundle of wearing apparel, and was a personal private possession, and it could not be searched without a warrant first being secured for that purpose; therefore, the testimony of Murphy, which was secured by unlawful search, was inadmissible at the trial.

Murphy did not have the right to search the jumper, because he did not know at that time that it contained liquor. He said he saw the impression of a bottle in the jumper, but that he did not know what the bottle contained; that he merely suspected that liquor was in the jumper because of appearances and the fact that he could smell it in the atmosphere before he reached the horse, and because he had seen the appellant reel when he got off of his horse.

There are several decisions of this court which support the view announced above, and we can see no good purpose to be served in discussing the question, except to say again that the private personal possessions of a citizen cannot be searched unless a warrant is first secured to make the search; and we consider packages in the possession of a person, such as suit cases, grips, bundles of wearing apparel, etc., are private personal possessions which cannot be searched without a warrant, unless the party is first lawfully arrested. None of these conditions appear in this case, and Murphy did not know that the jumper had whisky in it; therefore the judgment of the lower court must be reversed and the case remanded. See Eli Butler v. State, 101 So. 193, 135 Miss. 885.

Reversed and remanded.