Ross v. State , 140 Miss. 367 ( 1925 )

ON SUGGESTION OF ERROR. Distinguished counsel for the defendant has filed an interesting suggestion of error, in which he quotes a part of the opinion rendered heretofore, concluding with the statement of the court:

"We are of the opinion that the appellant cannot invoke the protection of the law against search and seizure without a warrant, when he at the same time testifies that the thing which was unlawfully searched by the officer was not his property nor in his possession," — and then says: "That assumes that appellant is estopped from calling on the protection of the law of search warrant, because he denies the ownership of the suit case. This point is handed straight to the court for its decision; that is, the court is putting on this defendant the estoppel that properly belongs to the state. This man cannot be guilty unless this suit case was his property. No juggling of words can get around this proposition, and this court can only sustain conviction upon the fact proved that the suit case was his property. Now, if the suit case was his property, most certainly his property rights arose, and there was no right of seizure unless by search warrant, and there was no search warrant, and it is submitted that his rights are not to be determined and concluded by his contention that the suit case was not his property. The rights of this defendant are based upon facts, not upon words, and the fact held by this court, and necessary in order to sustain his conviction, is that the suit case was his property."

This is specious, but fallacious. The defendant may waive constitutional rights, and he make take a position inconsistent with the assertion of such rights. In United States Fidelity Guarantee Co. v. State, 121 Miss. 369, 83 So. 610, we held that a city marshal who searches a suit case of a person for alcoholic liquors without a search warrant violates this section and is guilty of a willful wrong. In the present case, the question of abandonment of suit case was involved, but not decided. We have held in a number of cases that the right against search and seizure of one's property was only available to the owner of the property, or one having the right of possession, which would make him owner for the time being, or give him a qualified right of ownership in the property searched or seized.Lee v. City of Oxford, 134 Miss. 647, 99 So. 509; Falkner v. State, 134 Miss. 253, 98 So. 693.

In the case of Lee v. City of Oxford, 134 Miss. 647, 99 So. 509, the evidence was obtained against the defendant, Lee, by a wrongful search of the residence of another person in which Lee was for the time being present as a guest. We held that the evidence obtained was admissible against Lee, and that he could not complain of the wrongful search of another person's property. In the case of Falkner v. State, 134 Miss. 253, 98 So. 691, there was an unlawful search of the premises of Tom Falkner, who was jointly indicted with Pete Falkner for violation of the liquor laws, and judgment was reversed as to Tom Falkner, because the evidence was unlawfully obtained as to him, but it was affirmed as to Pete Falkner, because he could not complain of the unlawful search of the premises of another person. We also hold to the same effect in Harris v.State, 98 So. 349, although no opinion was written in that case.

When the defendant solemnly swore that the property was not his property, he eliminated the search and seizure question from the case, and the case then stood before the jury upon the testimony of the officer and the defendant, as to whether the property belonged to the defendant. It is familiar learning that an oath, deliberately and solemnly taken, will estop a person taking the same from asserting the contrary thereafter. Certainly the appellant waived his right to claim the search was unlawful when he solemnly and deliberately testified, on oath, that the property was not his property.

Having taken this position, he must stand upon it, and suggestion of error will be overruled.

Overruled.