McNutt v. State , 143 Miss. 347 ( 1926 )

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 874, n. 99; p. 885, n. 63; p. 921, n. 87; p. 926, n. 62; Intoxicating Liquors, 33CJ, p. 679, n. 51 New. The appellant, McNutt, was tried and convicted in the circuit court for possessing intoxicating liquor, and sentenced to a fine of five hundred dollars and ninety days in jail. The case arose because the sheriff had some kind of information, which is not disclosed in the record, that the appellant was coming along the public highway with intoxicating liquor in his car, and the sheriff stationed himself and his deputies along the highways, and, when appellant came along, the sheriff halted him and searched the car, and found therein a large quantity of intoxicating liquor, whereupon he arrested appellant, who was tried and convicted on the evidence of the sheriff obtained by such search without a warrant. Prosecution was instituted before a justice of the peace where appellant was convicted and appealed to the circuit court, where, as above stated, he was again tried and convicted.

There was no objection to the evidence when it was first offered, but on cross-examination the attorney for the appellant sought to elicit from the sheriff and the other state witnesses the kind and character of information which they had under which they acted in making the search without a warrant, but the court sustained the objection of the state to the question seeking this information from the witness as to what the information was, who the person was that gave it, and the time when they received the information, and the action of the court in thus ruling constitutes the assignment of error in this case.

The appellant insists that there was not a showing of probable cause which would authorize the search of the automobile without a warrant, as provided for in the Act of 1924, chapter 244, section 2, and as held in Moore v. State, 138 Miss. 116,103 So. 483, while the state insists that, if the sheriff had such information as would lead men of ordinary caution, prudence, and good conscience impartially, reasonably, and without prejudice upon such facts to believe the accused person guilty, and where the sheriff says he had such information, the sheriff is the only party who would have the right to determine whether or not the facts given him by the witnesses were such facts as would constitute probable cause.

In the Moore case there was no question as to the sufficiency of the information shown in the record to constitute probable cause, and the court in that case held that, where there was probable cause, no search warrant need be obtained upon proper affidavit. What is probable cause and the sufficiency of the evidence to constitute probable cause are judicial questions to be determined by the court, and, if in fact the information obtained by the officer is insufficient to constitute probable cause, a search will be illegal, although the sheriff or constable might think it sufficient. They are not the final judges. The facts must amount to probable cause, and the court will pass judicially upon whether the information amounts to probable cause or not in each case coming before it.

The objection by the appellant, however, was not seasonably made. It should have been made when the evidence was offered, and, if made at that time, it would be the duty of the court before admitting it before the jury to hear the facts and pass upon the competency of the evidence as in other cases. The questions propounded on cross-examination would be proper questions upon a hearing before the judge as to the admissibility of the evidence. The admissibility of the evidence is for the court, and not for the jury. On objection, the court will inquire into the competency of the evidence, and on the hearing before the court the facts may, and should, be, inquired into that throw light upon that question.

It is true that in a different character of case, such as a suit for damages, or a criminal prosecution against an officer for trespass, the jury would perhaps be called upon to pass upon the sufficiency of the evidence to sustain or defeat the action, but in the case before us the competency and sufficiency to constitute probable cause was exclusively for the court. The appellant having failed to object at the proper time, he cannot now, after the evidence had been admitted without objection, object that he was not permitted to develop the facts with reference to the sheriff's information leading to the search and securing of evidence. The judgment of the court will, therefore, be affirmed.

Affirmed.