Opinion
No. 31463.
November 26, 1934.
1. CRIMINAL LAW.
Generally, objection to admission of evidence must be made as soon as applicability of evidence is known or could reasonably be known to objecting party, unless some special reason makes postponement desirable for him and not unfair to proponent of the evidence.
2. CRIMINAL LAW.
In liquor prosecution, general objection as to what defendant said when arrested held not sufficient to direct court's attention to specific objection, made at close of state's evidence, that arrest was unlawful, and hence specific objection could not be considered on appeal.
3. CRIMINAL LAW.
In liquor prosecution, where no proper objection was made to state's evidence when offered and no request made for leave to postpone objections to later stage of trial, and record disclosed no reason why court should have granted request if made, refusal to exclude state's evidence at close thereof because allegedly obtained by unlawful arrest held not error.
APPEAL from the Circuit Court of Newton County.
E.R. Wall, of Newton, for appellant.
There is no question as to whether or not the evidence was unlawfully obtained. The undisputed facts show that there was no charges against Lim Williams at the time of the telephone call; that he was not violating any law whatever at the time the officers came to his house; that he turned to go into the house, and they followed him, no legal reason for so doing; that they were in his yard at the time he came out the house with the box containing the home brew; that they arrested him without warrant and took the evidence from him. The fact that he had a box and was running away does not convict him without additional evidence lawfully obtained.
It is our contention that the motion should have been sustained and the defendant found not guilty.
State v. Messer, 108 So. 145.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is well settled in this state that it is the duty of the defendant to object to testimony as and when it is offered.
McNutt v. State, 143 Miss. 347, 108 So. 721.
This was not done in the case at bar, no objection having ever been made to the testimony of this officer on the ground that the search was unlawful.
In a case where it was contended that evidence was inadmissible because acquired as a result of a search on a void warrant, the court has held that it is incumbent upon the accused to make his objection when the affidavit and warrant are offered in evidence and that a motion to exclude is not sufficient to raise the question when made at the conclusion of the evidence. It is too late then.
Harris v. State, 153 Miss. 1, 120 So. 6.
This is an appeal from a conviction of having intoxicating liquor in possession. The case originated in a county court, and the judgment of conviction there rendered was affirmed by the circuit court. No evidence was offered by the appellant, but at the close of the state's evidence he requested the court to exclude it, and to direct the jury to return a verdict of not guilty. The ground of this motion is that the evidence introduced by the state was obtained by means of an unlawful arrest of the appellant. The evidence discloses that J.M. Wells, marshal of the town of Newton, received a telephone call "to come to Lim Williams' house." He was not advised of the purpose for which he was called, but went immediately to Williams' house, accompanied by two other persons. On arriving at the house, Williams was standing in the front yard thereof, but immediately turned and went into the house. Wells was preparing to follow him when Williams emerged therefrom with a box in his arms, and ran. At Wells' request Joe Wagner, one of the persons who accompanied him to the house, stopped Williams and took the box from him, which, on being opened, disclosed that it contained several bottles of whisky. After the box was taken from him, Williams stated that he had the whisky for his own use. Wagner also gave similar testimony, without objection by the appellant.
The only argument by the assistant attorney-general in support of the refusal of the court below to sustain the motion to exclude the evidence is that the motion was made too late. "The general principle governing the time of the objection to the admission of evidence" is that it must be made as soon as the applicability of it is known (or could reasonably have been known) to the opponents, unless some special reason makes a postponement desirable for him and not unfair to the proponent of the evidence. 1 Wigmore on Evidence, sec. 18; Dick v. State, 30 Miss. 593; Mabry v. State, 71 Miss. 716, 14 So. 267; McNutt v. State, 143 Miss. 347, 108 So. 721; Harris v. State, 153 Miss. 1, 120 So. 206.
It was clear from Wells' evidence, delivered before that here objected to was offered, that neither he nor Wagner had a warrant for the appellant's arrest. The only objection to any portion thereof prior to the close of the state's evidence was as follows:
"Q. What did Lim Williams say on this occasion? A. He said he had this for his own use.
"Mr. Wall: We object.
"The Court: Overruled.
"Mr. Wall: We except."
This evidence was relevant to the issue, and the general objection did not direct the attention of the court to the specific objection now made thereto. Consequently it cannot now be considered. 1 Wigmore on Evidence, sec. 18; Jackson v. State, 163 Miss. 235, 140 So. 683, and authorities there cited. No request was made by the appellant, at the time the evidence complained of was offered, for leave to postpone objections thereto to a later stage of the trial; and the record discloses no reason why the court should have granted such an indulgence.
Affirmed.