Knight v. State , 171 Ark. 882 ( 1926 )

Appellant was tried and convicted under an indictment charging him with the offense of having in possession an unregistered still, and his contention for reversal is based on the ground that the evidence is insufficient to sustain the verdict, and that the court erred in admitting testimony based upon information obtained by the arresting officer while searching appellant's dwelling-house without a search warrant. Appellant is a negro tenant farmer residing in Lee County, about ten or twelve miles from Marianna.

The State relies upon the testimony of Smith, the sheriff, and Curtis, a deputy, who accompanied him to appellant's house. According to the testimony of these two witnesses, the sheriff received information that appellant was operating a still somewhere about his premises, and the sheriff and Curtis, one of his deputies, went to appellant's house, and found in the loft of the house an apparatus which he described as a still, and testified that it was in fact a still and had recently been in operation. He testified that he found the apparatus in a sack, and brought it down into the lower room in the presence of appellant and Curtis. Curtis testified to the same effect.

When the two officers got to appellant's house, they did not find appellant or any other person there, and Curtis went out into an adjoining field, under Smith's instruction, to find appellant and bring him to the house, which Curtis did. While waiting for appellant to be brought in, Smith, according to his own testimony, strolled about the lower rooms of the house to ascertain what he could find, and, when Curtis returned with appellant, he went up into the loft and found the still. He described it as a large copper boiler, with an eighteen-inch pipe attached thereto, and testified that the whole apparatus smelled strongly of whiskey, and that it was complete as a crude still for making whiskey. Another witness, who had examined the still after it was brought into town, testified that, without any coil on it, it was sufficient to use in distilling spirituous liquors. The sheriff testified that he found the apparatus in a sack, and that there was also a coil in the sack, adapted to use in attaching it to the pipe which protruded from the boiler.

Curtis testified that, when the sheriff came down from the loft, he had the sack in one hand containing the apparatus, and the coil in the other hand. Appellant was arrested by the sheriff, and the apparatus was taken into custody and carried to town and held in the sheriff's office until the trial of the cause. The apparatus itself was not introduced in evidence, but the sheriff and his deputy testified concerning its condition and how it was obtained.

Appellant admitted that he had the boiler with the pipe in it, which he claimed he had found a few weeks before beneath the waters of a lake, and that he had taken it out and put it in his loft for the purpose of selling the boiler as old copper. He denied that there was any coil with the apparatus, but stated that the coil then in possession of the sheriff had been found at another house, over which he had no control.

We are of the opinion that the apparatus, as described by the officers, was a crude still, assembled at appellant's house for the purpose of manufacturing ardent spirits, and that it was susceptible to that use. Moore v. State, 154 Ark. 13, 240 S.W. 1082.

Appellant made objection to all the testimony with reference to the finding of the still, on the ground that the evidence was unlawfully obtained by search without warrant. The court overruled the objection to the testimony, and it is earnestly insisted that this was error which calls for a reversal. In other words, we are asked to overrule former decisions of this court holding that such testimony is admissible even though based upon information wrongfully obtained by unlawful search. The same argument is made as was made in the recent case of Van Hook v. Helena, 170 Ark. 1083, 282 S.W. 673, that our previous decisions on this subject are in conflict with the rulings of the Supreme Court of the United States, and should be overruled.

We deem it unnecessary to enter upon a reconsideration of the precise questions decided in previous cases, for the reason that we conclude that the facts of the present case bring it within the exception announced by the Supreme Court of the United States to the rule against allowing testimony based upon information obtained by search without warrant. In the recent case of Carroll v. United States, 267 U.S. 132, Chief Justice Taft, speaking for the court, said:

"When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense, may be seized and held as evidence in the prosecution. * * * The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law."

In the still more recent case of Agnello v. United States, 269 U.S. 70, the court said:

"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. * * * Such searches and seizures naturally and usually appertain to and attend such arrests. But the right does not extend to other places."

Further on in the opinion the court said: "While the question has never been directly decided by this court, it has always been assumed that one's house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein."

The offense of possessing an unregistered still is a felony under our statute. Acts 1921, p. 372. A peace officer may lawfully make an arrest without warrant "where he has reasonable grounds for believing that the person arrested has committed a felony." Crawford Moses' Digest, 2904. The sheriff testified that he had reasonable information that appellant was engaged in the manufacture of whiskey, and he went to appellant's house pursuant to that information, and had him brought in from the nearby field where he was at work, and that the search was made in appellant's presence. He testified also that appellant was immediately arrested on the charge of possessing an unregistered still. The testimony is not altogether clear as to the precise moment when the formal arrest was made, but the testimony, when considered together, shows that appellant was taken into custody out in the field and brought to the house, pursuant to the sheriff's information that whiskey was being manufactured there. In other words, the testimony, reasonably considered, shows an arrest substantially contemporaneous with the search of the premises, and the case in this respect comes clearly within the decisions of the Supreme Court of the United States. It is not proper, we think, to draw fine distinctions as to the particular moment the arrest was made, for, according to the decisions of the Supreme Court of the United States, when there is a lawful arrest and the arrest and search are substantially contemporaneous, there is no violation of the constitutional guaranty against unlawful search, and the evidence found under those circumstances is not inadmissible. Our conclusion therefore, under the facts of this case, is that the testimony of the arresting officers was admissible, and this conclusion is reached without reconsidering our former rulings on that subject.

Judgment affirmed.