W.A. Lomax, for appellant.

I. Since no search warrant was issued, the source of the sheriff's information should have been revealed. The informants should have shown to be credible and the information shown to have been received within a reasonable time prior to the search and seizure.

We submit that the case of Ford v. City of Jackson, 153 Miss. 616, 121 So. 278, and the authorities cited thereunder are controlling on this point.

One of the most complete and best reasoned cases on this subject is that of McGowan v. State, 184 Miss. 96, 185 So. 826.

II. No search warrant was issued; no misdemeanor was shown to have been committed in the presence of the officers; no probable cause existed for the search.

In the case at bar the sheriff testified that he was in a public road at a distance of 34 steps or 102 feet approximately from the parked automobile. He had no search warrant and did not explain why he had not obtained one. He refused to reveal the name of his informant or show when the information was received. The sheriff apparently hoped that a misdemeanor or crime would be committed in his presence in order to make a lawful arrest.

Fortunately, at a distance of 102 feet, he was able to see the defendant "come out of the car with some whiskey. A jug fell and busted," or again "some of the jugs fell and busted and you could smell it across town." He testified that he found the broken jug in the automobile and also at such distance of 102 feet was able to detect the smell of whiskey. He was able to identify the liquids in the jugs as whiskey because the "moon was shining bright as day and the moon was just before going down and it was shining against the house." The time is variously estimated by the sheriff as "about an hour or hour and a half after midnight to 2:15 A.M." I trust that the Court will take judicial notice that most any calendar will disclose that the moon was in its last stages on the morning of April 19 and did not arise until 2:40 A.M. and set at 1:53 P.M. the following afternoon, some twelve hours after the sheriff testified it did.

Assuming that a jug or jugs of whiskey broke, does this constitute a misdemeanor? We think not.

The officers first established themselves in the case at bar approximately 100 feet south of the road across from Henry Dunn's home. After the car backed in, the officers crawled up to and across the road to a tree on the edge of the road, approximately 34 steps or 102 feet from the parked car. The search and pursuit was on just as much as if a squad car was being utilized. See Ford v. City of Jackson, 153 Miss. 616, 121 So. 278.

In the case of Myers v. State, 158 Miss. 554, 130 So. 741, the Court declared that: "One of the safest tests, although we do not declare it to be under all circumstances an exclusive test, of when a misdemeanor is committed in the presence of an officer, is whether the officer as a witness could at the time of the arrest of his own knowledge testify as to sufficient facts as having happened in his presence to make out a case for conviction, if his evidence were undisputed; and of course, an admission made to him or in his hearing is sufficient to supply knowledge of those facts competent to be covered by admission. But no admission or confession can wholly supply the corpus delicti; that is to say, there must presently exist, independently of the confession, the essential facts which constitute the corpus delicti."

In the instant case, the sheriff could not tell that the jugs actually contained whiskey rather than some other liquid, until after his search was made, the jugs actually opened, and the contents verified as whiskey. In this case there were no green or brown labels that could be observed and identified at a short distance, but gallon jugs.

In the case of Canteberry v. State, 142 Miss. 462, 107 So. 672, the sense of smell is involved. The Court said: "Murphy did not have the right to search the jumper because he did not know at that time that it contained liquor. He said he saw the impression of a bottle in the jumper but that he did not know what the bottle contained; that he merely suspected that liquor was in the jumper because of the appearance and the fact that he could smell it in the atmosphere before he reached the horse, and because he had seen the appellant reel when he got off his horse."

We submit that the officer in the instant case may have smelled liquor and may have suspicioned that the jugs contained whiskey, all at a distance of 102 feet; but that he could not have been sure until after he inspected and opened the jugs in question.

Geo. H. Ethridge, Assistant Attorney General, for appellee.

The assignments of error filed by appellant contain three grounds: first, that the court erred in refusing to make the sheriff of Grenada County disclose his information, and, second, that the court erred in overruling the motion of the appellant to exclude testimony offered on the preliminary examination, and, third, that the court erred in overruling the motion of the appellant for a peremptory instruction.

The appellant cites a number of cases, among them Ford v. City of Jackson, 153 Miss. 616, 121 So. 278; Perry v. State, etc., 150 Miss. 293, 116 So. 430; McNutt v. State, 143 Miss. 347, 108 So. 721; Mapp v. State, 148 Miss. 739, 114 So. 825; McGowan v. State, 184 Miss. 96, 185 So. 828, which cases are not applicable to this case, because those cases were cases where a search was made without a search warrant and probable cause to believe that the parties were guilty, and no facts were shown in those cases which would constitute probable cause. Here, the sheriff was no trespasser, and the liquor found and seized was not on the property of the defendant, that is, the case here is one in which the sheriff relied on the smell of whiskey, which was strong, and also in seeing the appellant take three jugs into an outhouse on the place of Henry Dunn, which did not belong to the appellant. No showing was made that he had any possessory rights or title to the property where the liquor was found. It has been repeatedly held in this state, beginning with Moore v. State, 138 Miss. 116, 103 So. 483, that vehicles propelled by a motor, or fast moving vehicles like automobiles, could be searched on probable cause without a search warrant.

In Lee v. Oxford, 134 Miss. 647, 99 So. 509, it was held that to raise the question of the defendant's right to the protection of Sec. 23 of the Constitution and the statutes enacted by the Legislature, the appellant must have title to, or at least a possessory interest, before he can raise a question of whether the search violated the law. In other words, in that line of cases, no possession or title was shown to the places searched, and the search was accordingly held to be legal. See: Goodman v. State, 158 Miss. 269, 130 So. 285; Lovern v. State, 140 Miss. 635, 105 So. 759; Hamilton v. State, 149 Miss. 25, 115 So. 427; Arnold v. State, 153 Miss. 299, 120 So. 731, and Sec. 2615, Code 1942, bearing on the officer's duty and rights in cases on which he has information that intoxicating liquors are being transported in violation of the law, and making it the duty where the information possessed by the officer amounts to probable cause, for him to seize the vehicle and deal with it in accordance with the law.

In Arnold v. State, supra, it was held, "Town marshal, smelling whisky on breath of occupant of automobile and seeing bottle of whisky in car, had probable cause for seizure of whisky and arrest without a warrant pursuant to authority of Laws 1924, c. 244, Sec. 2 (Hemingway's Code 1927, Sec. 2239), since in order to justify his action in searching without a warrant he was not required to know the truth of charge, but only to have good reason to believe that there was liquor in automobile."