King v. State

^* Corpus Juris-Cyc References: Arrest, 5CJ, p. 419, n. 14 New; p. 434, n. 84; Intoxicating Liquors, 33CJ, p. 754, n. 31 New; p. 756, n. 59; p. 758, n. 80. As to sufficiency of showing of probable cause for search intoxicating liquor, see annotation in 3 A.L.R. 1517; 13 A.L.R. 1318; 27 A.L.R. 742; 39 A.L.R. 835; 41 A.L.R. 1539; 24 R.C.L. 707; 3 R.C.L. 1383; 4 R.C.L. 1552; 5 R.C.L. 1295; 6 R.C.L. Supp. 1434. Appellant, Albert King, was indicted for the possession of a distillery, commonly called a "still," and the integral parts thereof, and was placed upon trial and convicted.

It appears that the evidence against the appellant was obtained by a search of his premises. On the offering of this evidence it was objected to, unless and until the affidavit and search warrant were introduced in evidence, which was not done; but the district attorney stated that he expected to rely upon information as to the commission of a felony, which information amounted to probable cause, and the going to the premises of the appellant for the purpose of arresting him on such information.

It appeared from the evidence that a deputy sheriff and a constable living at Pelahatchie, in Rankin county, had secured some kind of information that there was a still being operated near the defendant's residence, and went to a justice of the peace, and secured a search warrant to search the premises. The affidavit and warrant were not offered on the trial, nor was their loss or destruction proven. It appears that no warrant was obtained for the arrest of the defendant; in fact, the record does not show that he was arrested on this occasion. The deputy sheriff and the constable and another person went to the place occupied by the appellant, and one of the officers remained at the house while the other officer and the private citizen acting with them went down to a pond located near the house of the appellant. While searching around the pond the officer and the private citizen found a distillery, one of the improvised kind with pipes and barrels, and beer, near the pond. It further appears that another man was living on the opposite side of this pond, only a short distance from where the still was located, and also that a third party lived east of the pond a short distance, and that both of these men had previously been convicted of the crime of unlawfully distilling, or of possessing a still, and that the information upon which the officers were attempting to make the search was furnished by one of these parties.

The evidence with reference to the information furnished the officers was not as full and complete as it should have been, but the court seems to have proceeded upon the idea that, if the officers believed the information, it was sufficient to amount to probable cause. Probable cause is always a judicial question, and an officer undertaking to act upon probable cause in making an arrest must not only have such information as satisfies his mind, but it must be legally sufficient to satisfy the mind of the court that it constitutes probable cause. However, in this case there was no showing that an arrest was actually made, and without a search warrant a search can only be made when a lawful arrest is made, and the right of search in such a case is a limited one (Toliverv. State, 133 Miss. 789, 98 So. 342), and does not go to the extent of searching the entire premises of the person arrested. The right of search following a lawful arrest is not so extensive as a search under a search warrant which described the premises to be searched. There was also a failure in the evidence to establish the fact that the still was located on the property occupied by this appellant. The officers and witnesses testifying were unable to say upon whose land the still and the mash were found. At most, it was a mere conjecture that they were upon the premises occupied by the appellant. As stated above, two other persons were living near the place where the still was found, and occupied premises whose boundaries are not described in the evidence, each of whom had been convicted either of distilling or having in possession a still.

We think it was error to admit the evidence of the still and the mash as shown in the record in this case.

The state relies upon the case of Ingram v. State, (Miss.),111 So. 362, and authorities cited in that case. In the Ingram case the officers testified that they did not go upon the premises for the purpose of making a search, but for the purpose of making an arrest of a designated person on information that such person had recently committed a felony, and, unless arrested, would commit another felony; that on going to the point where the information indicated the felony had been committed they found the defendant and sought to arrest him, but that he fled, and escaped temporarily. In that case the finding of the distillery was incident to an effort, lawfully made, to arrest the defendant upon sufficient probable cause. Here there is no showing that an arrest was made, or that they went to the designated place for the purpose of making arrest. So the case of Ingram v. State, and the cases therein cited are not authority for admitting the evidence in the present case. The judgment will therefore be reversed and the case remanded for a new trial.

Reversed and remanded.