Opinion
No. 27354.
December 3, 1928.
1. CRIMINAL LAW. Accused cannot complain regarding admission of evidence obtained by unlawful search and seizure, where he testified to facts revealed by such evidence.
Accused cannot complain regarding admission of evidence in liquor prosecution obtained by unlawful search and seizure, where he took stand in his own behalf and testified regarding facts revealed by such evidence, since in voluntarily testifying he waived illegality of search and seizure.
2. INTOXICATING LIQUORS. Whether accused possessed imitation of essence of allspice to sell it for household purposes or for human beverage held for jury.
In liquor prosecution, question whether accused possessed imitation of essence of allspice for purpose, in good faith, of selling it for household purposes or for human beverage, held for jury.
APPEAL from circuit court of Scott county, HON. G.E. WILSON, Judge.
Mize Dudley, for appellant.
Appellant's first assignment of errors is that the court erred in permitting incompetent evidence to go to the jury over the timely objection of appellant.
If witness's object in going on defendant's premises was to acquire knowledge or to obtain evidence without a search warrant to use against the defendant — then the evidence secured in this manner was illegally obtained. If he had a search warrant and did not present it to the defendant, the effect is the same. See Davison v. State, 137 Miss. 188, 102 So. 161, 36 A.L.R. 717.
As to the second proposition we insist that error was committed in permitting the witness Thorn to detail any statement made to him by appellant as to whether or not appellant had sold or engaged in selling essence of allspice (see Record — 19), since it was not a violation of the law to possess or sell essence of allspice unless possessed for the purpose of selling it as a spirituous beverage and not as a household commodity.
Our next assignment of error is that appellant's motion to exclude the evidence offered by the state and direct the jury to return a verdict of not guilty should have been granted on either ground — the search was made without a warrant and without probable cause; or, that the allspice found by the officers was possessed by the defendant for the purpose of selling it as a household commodity — the label, which it bears, supporting his testimony and his motion. See Cutts v. State, 114 So. 389; Dempsey v. State, 111 So. 295.
Next appellant contends that this conviction should not be permitted to stand for the reason that the search of appellant's car was made without a search warrant and without probable cause.
The testimony on this point as testified to by Constable Thorn showed conclusively that they had no creditable information upon which they could search. See McNutt v. State, 108 So. 721; Mapp v. State, 114 So. 825; Hamilton v. State, 115 So. 427; Sellers et al. v. Lofton, 116 So. 104.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
It is first contended by counsel for appellant that the evidence of the finding of empty bottles around the appellant's premises was not admissible over the objection of appellant and that the evidence of the conversation between the witness Thorn and the appellant about the appellant selling "allspice" was not admissible over the appellant's objection. It is not necessary to consider whether or not it was error to allow this evidence to be introduced over the appellant's objection, as the appellant himself testified on his own behalf and admitted that there were a great number of empty bottles around his premises, and further the appellant admitted all during his testimony that he sold "allspice."
Counsel contends that the court erred in overruling the appellant's motion to exclude the evidence and to direct a verdict of not guilty; first, on the ground that the search was made without a warrant and without probable cause, and, second that the "allspice" found was possessed for the purpose of selling it as a household commodity. The testimony introduced for the state shows that just after the appellant had received a box containing one hundred and forty-four bottles of allspice from the railroad express office in the town of Morton, that the officers arrested the appellant and took charge of the box, which upon examination proved to contain the allspice, which, it was testified, contained eighty-five per cent alcohol and was capable of being used as a beverage. The officers stated that they had reason to believe and did believe that this box contained the allspice as stated. In considering whether or not this search was made without a warrant and without probable cause, the appellant himself admitted that the officers took possession of the box containing the allspice. Having admitted this fact, the error if any, is cured. Blowe v. State, 130 Miss. 112.
It is argued by counsel for the appellant that the evidence fails to show that the allspice found in appellant's possession was possessed for the purpose of selling it as a beverage.
It is the contention of the state in the case at bar that the evidence is sufficient to show that the allspice found in the appellant's possession was possessed for the purpose of being sold as a beverage. First, the fact that the appellant had engaged in the sale of allspice for about a year. Second, the fact that he had been convicted once in the justice of the peace court and once in the mayor's court, both upon charges of possessing intoxicating liquor, and that he had plead guilty to these charges when they were actually charges of the possession of allspice. Third, the fact that the appellant tried to get the officers to let him off when he was arrested for the possession of the allspice as shown in the testimony introduced by the officers. Fourth, the fact that a great number of bottles, similar to the allspice bottles seized by the officers were found around the appellant's premises and place of business. All of this testimony seems to me to be sufficient to exclude every other reasonable hypothesis than the fact that the appellant was selling the allspice as a beverage.
Appellant was convicted in the court of a justice of the peace of Scott county of unlawfully possessing intoxicating liquor. He appealed to the circuit court of that county, where he was tried and again convicted, and sentenced to pay a fine of two hundred and fifty dollars and thirty days' imprisonment. From that judgment he prosecutes this appeal.
The intoxicating liquor which appellant was convicted of possessing was labeled:
"Imitation of essence of allspice; alcohol eighty-five per cent volume, suitable flavoring for pumpkin pies, spice cakes and candies."
Appellant, at the time of the alleged crime, was a merchant in Morton. He conducted a grocery and dry goods store, and, in connection therewith, a filling station. A shipment of the liquid which the state undertook to show by the evidence, and did show, was labeled as above set out, was consigned to appellant at Morton, a railroad station. Appellant went to the railroad station in his automobile to get the shipment, paid the freight or express charges on it, and put it in his car. It consisted of one hundred and forty-four bottles. As soon as it was put in the car, a constable of the county and the marshal of the town of Morton seized the package, arrested appellant, took him before the mayor of Morton, and preferred a charge against him of unlawfully possessing intoxicating liquor. The charge before the mayor was that this case of one hundred and forty-four bottles contained intoxicating liquor. Appellant pleaded guilty to the charge, and was fined, and paid the fine. Thereupon, one of the officers preferred the same charge against appellant, based on the same facts, before a justice of the peace of the county, who tried appellant, convicted him, and from that judgment the latter appealed to the circuit court, where appellant was tried and again convicted, and appealed to this court.
The evidence showed without conflict that the liquid contained in the one hundred and forty-four bottles labeled "Imitation of essence of allspice" were intoxicating when drunk to excess. The evidence showed further, without dispute, that the officers found in and around appellant's place of business large quantities of empty bottles, with the same label as the bottles seized by them on this occasion; that there was probably a sugar barrel full of them, or more.
Appellant testified as a witness in his own behalf. He admitted the facts above set out, and undertook to justify the possession of the case of bottles labeled, "Imitation of essence of allspice," by stating that he sold it, not as a beverage, but for kitchen flavoring purposes.
The search of appellant's car, the seizure of the case of bottles therein, and the search of his premises by the officers, showing the large quantity of empty bottles of a like kind to those seized, was done without a search warrant. Appellant objected to this evidence acquired by virtue of such search and seizure.
Appellant's objection was without merit, for appellant testified as a witness in his own behalf, and admitted every fact of which the officers learned by their search and seizure, and testified to as witnesses. A defendant is not injured by evidence procured against him by an unlawful search and seizure, where he goes upon the witness stand in his own behalf and admits the facts revealed by such evidence. He is not harmed by such evidence, and therefore has no right to complain. In so voluntarily testifying, he waives the illegality of the search and seizure. Blowe v. State, 130 Miss. 112, 93 So. 557, 24 A.L.R. 1429.
Appellant contends that he was entitled to a directed verdict under the authority of Billington v. State, 140 Miss. 179, 105 So. 457; Young v. State, 137 Miss. 188, 102 So. 161, 36 A.L.R. 717; Brown v. State, 142 Miss. 104, 107 So. 381; Cutts v. State, 148 Miss. 593, 114 So. 389.
On the evidence this is a very different case from any of those cited above. We have here, in addition to large quantities of empty bottles found around appellant's place of business, with the same labels as those seized in this case, the undisputed fact that the liquid seized contained eighty-five per cent. of alcohol, and, when drunk to excess, would intoxicate; and that appellant had pleaded guilty to the same charge in the court of the mayor of Morton, and that the foundation of that charge was the possession of the same bottles of liquid which is the foundation of the charge in the present case. We think the evidence was ample to go to the jury on the question of whether or not appellant possessed this "imitation of essence of allspice" for the purpose, in good faith, of selling it for household purposes, or for human beverage.
We see no merit in the other contentions of appellant.
Affirmed.