Summary
In Cochran v. State, 191 Miss. 273, 2 So.2d 822 (1941), Cochran was arrested for possession of beer and slot machines inside a dance hall. Cochran, 2 So.2d at 822.
Summary of this case from Hughes v. StateOpinion
No. 34391.
June 9, 1941.
1. ARREST.
Where sheriff, in executing search warrant against dance hall, found beer and slot machines, and arrested one standing outside whom he had seen frequently at the place, but was unable to recall whether such person told him that he worked at the place or merely stayed there, the arrest was unauthorized.
2. CRIMINAL LAW.
Some degree of participation in criminal act must be shown in order to establish criminal liability, and proof that one has stood by at commission of a crime without taking steps to prevent it does not alone indicate participation or combination in the wrong done, although he approves of the act.
3. CRIMINAL LAW.
Where sheriff, without authority, arrested defendant outside of dance hall in which liquor and slot machines had been found, evidence that sheriff found whiskey concealed on defendant's person was not admissible against defendant in prosecution for possession of whiskey.
4. CRIMINAL LAW.
Testimony of bystander concerning sheriff's finding whiskey on defendant's person after illegal arrest was not admissible.
APPEAL from the circuit court of Attala county, HON. JOHN F. ALLEN, Judge.
W.A. Townsend and G.S. Landrum, both of Kosciusko, for appellant.
Appellant contends that the state failed to prove that he was an employee of the business known as Charley's Place, as called for in the search warrant wherein it was alleged that the sheriff found a few cans of beer and slot machines.
Since the sheriff testified that he did not know whether or not the appellant was guilty of any violation of the law at the time of his arrest and that he did not know that the appellant had violated any law or committed any crime at the time he was arrested without a legal warrant for his arrest, therefore the sheriff was without authority of law to make a legal arrest, and any evidence found on the person of the appellant at the time of an illegal arrest, is inadmissible in evidence, and the appellant should therefore be discharged.
Geo. H. Ethridge, Assistant Attorney-General, for appellee.
Under all of the circumstances shown by this record, we think the sheriff had a right to arrest the appellant. He was working at this place, had been there for some time, and was seen making deliveries to automobiles which came to the place, although it appears clear from the testimony that another person was in charge of the place of business when the officers arrived.
On the other hand, however, we think that if there were any error in admitting this evidence of what was found following appellant's arrest, such error was cured when the appellant's own witness went upon the witness stand and told the jury that appellant was in possession of this whiskey under the circumstances testified about by the officers.
Clayton v. State (Miss.), 131 So. 648; Millette v. State, 167 Miss. 172, 148 So. 728; Goodman v. State, 158 Miss. 269, 130 So. 285; Bowman v. State, 152 Miss. 195, 119 So. 176; Smith v. State, 166 Miss. 893, 144 So. 471; Blowe v. State, 130 Miss. 112, 93 So. 377; McPherson v. State, 124 Miss. 361, 86 So. 854.
The Sheriff of Attala County had a search warrant directing him to search the place and the premises operated as a dance hall by Charley and Leslie Faulker in that county. In the execution of the warrant, the sheriff found a quantity of beer in an ice box in the place and also three slot machines. The sheriff saw the appellant on the outside of the building conversing with some parties in an automobile. The officer testified that he had frequently seen appellant at this place during the past thirty or sixty days, and that on some of those occasions the action of appellant gave the appearance that he was delivering whiskey to the occupants of automobiles, although the sheriff did not say that he had actually seen appellant make any such deliveries.
When the sheriff found the beer and slot machines, he went outside and arrested appellant, and says in his testimony that he made the arrest "for the beer and slot machines." But before actually making the arrest he asked appellant: "Do you work here?" To which appellant replied: "I work here" or "I stay here," the sheriff not being able to say which one of these expressions was used. Whereupon the sheriff said: "I am arresting you for the possession of beer and slot machines."
The arrest being accomplished, search was thereupon made by the sheriff of the person of appellant, and concealed under appellant's shirt, two bottles of whiskey were found, for the possession of which appellant was afterward prosecuted and convicted.
The sheriff had no warrant for the arrest of appellant, and it is admitted that the officer had no probable cause at the time which would authorize the arrest for the the possession of the whiskey. The question is, therefore, whether the arrest was authorized for the possession of the beer or slot machines, as being an offense committed by appellant in the presence of the arresting officer.
If appellant was employed at this place, the nature of his employment is undisclosed, and there is not a word that he had any control over, or any part in, the beer or slot machines; but it is not necessary that we enter upon a consideration as to when and under what circumstances an employee, at or around a place where contraband is kept or possessed, would be guilty as a participant.
The reason for the foregoing statement is that the proof shows no more in its final analysis than that appellant was staying at or around the place in question; and the rule is that "some degree of participation in the criminal act must be shown in order to establish any criminal liability. Proof that one has stood by at the commission of a crime without taking any steps to prevent it does not alone indicate such participation or combination in the wrong done as to show criminal liability, although he approves of the act." Harper v. State, 83 Miss. 402, 415, 35 So. 572, 573.
The arrest was not within the authority of the law, from which it follows that the evidence of the finding of the whiskey concealed on appellant's person was not admissible. The attorney-general has submitted, however, that the proof that the whiskey was found concealed as aforementioned was made also by a bystander who witnessed the arrest, and that the testimony of this bystander would be competent, although the same proof by the sheriff himself would not be. This contention was made in Lancaster v. State, 188 Miss. 374, 381, 195 So. 320, and the ruling was that bystanders will not be allowed to give in evidence what was revealed by the illegal action of the sheriff.
It is regrettable that a party so obviously guilty as was this appellant, as subsequent events disclosed, should be discharged; but our duty is to maintain that convictions shall be within, and not without, the law.
Reversed and appellant discharged.