Ingram v. State , 146 Miss. 303 ( 1927 )

^* Corpus Juris-Cyc. References: Arrest, 5CJ, p. 417, n. 5; p. 434, n. 84; Criminal Law, 16CJ, p. 926, n. 63; 17CJ, p. 264, n. 89; Intoxicating Liquors, 33CJ, p. 758, n. 81. The appellant, D.W. Ingram, was convicted in the circuit court of Leake county of an attempt to distill intoxicating liquor, on an indictment charging him with the manufacture of intoxicating liquor.

It appears from the evidence that the sheriff's office was informed that certain intoxicating liquors had been and were being manufactured at a given point in the county, and that a barrel of mash was there ready to be manufactured into intoxicating liquor. Having procured this information, the sheriff secured a search warrant to search the premises of T.W. Ingram and proceeded to the point where the information obtained indicated that the liquors were brought to be manufactured and had been manufactured, where they found a barrel of mash in the stage of fermentation ready to be manufactured. They secreted themselves near this barrel, and several hours afterwards one Cal Ingram, a brother of appellant, came to the barrel, examined it, and went away. The officers remained some time in hiding, and then went to some point and spent the night, returning early the next morning, and again secreted themselves. Shortly thereafter, the appellant and Cal Ingram came to where the barrel was, and went and got their container, which, the proof indicates, was a part of the still, filled it with the mash, and started to the point where a furnace had been built. They stopped to rest between the barrel and this point right near where the officers were in hiding, and the deputy sheriff stepped out and undertook to arrest them, but they fled and so avoided arrest. The proof shows that appellant left the state for some two or three months, and returned into a neighboring county and was there working, when he was arrested shortly before the trial. The search warrant was served upon T.W. Ingram, the owner of the land upon which the still was found. The officers, however, testified that they went up there to make arrest of the parties engaged in distilling. They used the term "they," engaged in distilling, without specification, and no effort was made by either side to show exactly whom the information implicated in the manufacture of liquor. The evidence was objected to upon the ground that it was an unlawful search, and demand was made for the production of the affidavit and search warrant, but the proof showed that the search warrant and affidavit had been lost, and there was no specification, other than the evidence, showing that the Ingram place was described generally. T.W. Ingram was put on the stand as a witness, and he testified that, while the appellant was only eighteen years of age and lived with him in his home, he had emancipated him and had rented him the entire forty acres upon which the mash and integral parts of the still were found, and that the appellant had full control over this land. There is no pretense that the search warrant was obtained to search any property belonging to the appellant.

As stated above, however, the state proceeded upon the idea that it went upon the premises for the purpose of making an arrest, and that they had information that a felony, to-wit, the manufacture of liquor, had been committed and was about to be again committed upon the land, and that, as they were acting upon probable cause in seeking the arrest of a felon, where a felony had been committed, they did not have to rely upon the search warrant. Monette v. Toney, 119 Miss. 846, 81 So. 593, 5 A.L.R. 261; Pickett v. State, 139 Miss. 529, 104 So. 358;Kennedy v. State, 139 Miss. 579, 104 So. 449; Love v.State (Miss.), 107 So. 667.

While the proof as to the person they intended to reach and arrest upon the information is not as clear and satisfactory as it ought to be, still, we think the proof was sufficient to show that a felony had been committed, and that the officers had probable cause to believe that such information was founded upon fact; and we think the going upon the land for the purpose of effecting the arrest upon this information was legal and authorized the admission of evidence on the part of the state.

The appellant also contends that the question of probable cause should have been submitted to the jury, to determine whether a probable cause existed or not.

Admissibility of evidence is for the court, and, when the court, on a preliminary hearing, adjudges the evidence to amount to a probable cause, it may then go to the jury, and the jury then determines the facts from the evidence. McNutt v. State,143 Miss. 347, 108 So. 721.

However, the judge's finding of probable cause is subject to review in this court. The evidence so admitted goes to the jury for consideration with all the facts pertinent to the charge, and, if the evidence, as a whole, warrants a conviction, it will be upheld by the court.

We think, in the case before us, that the evidence was sufficient to sustain a conviction, and the judgment of the court below will be affirmed.

Affirmed.