Opinion
No. 32774.
November 8, 1937.
ARREST. Criminal law.
Officers who observed an automobile of defendant without a license tag on the rear end thereof as required by law, which constituted a misdemeanor, had authority to pursue defendant for the purpose of arresting him, and intoxicating liquor which was found in defendant's possession while officers were in pursuit was not illegally obtained but was admissible in evidence against defendant in prosecution for the unlawful possession of liquor (Code 1930, section 5613, as amended by Laws 1932, chapter 135, section 9; section 5621).
APPEAL from the circuit court of Kemper county. HON. JOHN C. STENNIS, Judge.
J.H. Daws, of DeKalb, for appellant.
The proof upon which the State relied for a conviction was unlawfully obtained, the officers Key and Allen chasing the defendant's car, and admitting that when the chase got under way, they reached the conclusion without being informed by any person that there was a probable cause for the search to be made, and the search was made upon their conclusion, when they overtook the defendant's car, and he was arrested by them on a charge of having in his possession intoxicating liquor and not upon the charge of violating the law in the presence of the officers by not having a tag on the rear of his car as provided by the statutes of Mississippi, and even if they had a right to make the arrest, then the evidence of liquor or rather the liquor could not have been used in evidence against the defendant on a charge of driving a car without being properly tagged.
Violating the law by driving a car without a tag and violating the law of possessing intoxicating liquor are in no wise connected the one with the other.
Dabney v. State, 82 Miss. 253.
The officers did not arrest the defendant for a misdemeanor committed in their presence. The admitted proof is that they ran him down, seized the defendant by force, and took the evidence away from him, and then offered it in evidence over the objection of the defendant.
Ford v. City of Jackson, 153 Miss. 616; Lofton v. Sellers, 149 Miss. 849.
All of the evidence offered by the State in the present case was seized before the officers made the arrest and defendant was never arrested for the offense of driving a car without a tag. Plainly the evidence secured was taken by force of violence and in violation of Section 23 of the Constitution of Mississippi, which section has been discussed many times, and passed on many times by this court.
Tucker v. State, 128 Miss. 211.
The questions involved in this case are not questions of fact, but are questions to be determined by the trial court and this court; and the trial court erred in not sustaining the defendant's motions to suppress the testimony and to instruct the jury peremptorily. Ethridge, on the Constitution of Mississippi, page 120, commenting on Section 23 of the Constitution, says: "This section of the Constitution is designed to protect persons from unreasonable searches, and other seizures, and is to be given a liberal construction." . . . "It is construed in connection with the section of the Constitution prohibiting persons from being forced to testify against themselves, and evidence procured by an unlawful search is inadmissible, because to admit it would be to give the State the benefit of wrong committed by its officers and agents." Therefore, any evidence used against a defendant which was taken by force, or was unlawfully taken, cannot be used against the defendant on the trial of the cause.
Tucker v. State, 128 Miss. 211; Ethridge on the Constitution, page 120; State v. Cofer, 152 Miss. 762.
W.D. Conn, Jr., Assistant Attorney General, for the State.
The State submits that the evidence of unlawful possession of intoxicating liquor was admissible as against appellant for this reason: Section 5613 of the Mississippi Code of 1930, as amended by Chapter 135 of the Laws of 1932, provides for the display of a license tag at the rear of all automobiles, and Section 5621 provides that an automobile being operated without such license tag displayed, as provided by Section 5613, is a misdemeanor and prescribes the penalty therefor.
Thus, when the officers came upon appellant operating his automobile without such tag, then there was a misdemeanor being committed in the presence of the officers and they had a right to investigate and arrest for its commission. Before they could make the investigation and arrest, appellant, by his actions, revealed the possession of intoxicating liquor. Appellant's actions indicated, without any sort of doubt, that he was trying to dispose of the whiskey in order to keep the officers from finding it on him.
Appellant was convicted in the circuit court of Kemper county under an indictment charging him with unlawfully having in his possession and under his control intoxicating liquor, and was sentenced to pay a fine of $150 and to serve a term of forty-five days in the county jail. There was sufficient testimony to sustain the verdict of the jury on this issue of fact, and the only question presented by this appeal is the admissibility of the evidence in regard to the discovery and seizure by the officers of the liquor in question.
The sheriff, accompanied by a constable, was driving in an automobile at night, and upon entering United States highway 45 in Kemper county from a side road they observed the automobile of the appellant in front of them traveling in the same direction, without having a license tag on the rear end of the car as required by law. Thereupon these officers, without knowing who the owner or driver of the car was, drove up by the side of it, announced that they were officers, asked the appellant to stop, and told him that they wanted to see about his license tag. Instead of stopping, appellant undertook to get away. The officers pursued his car, overtook it, and turned their car across the road ahead of him in order to force his car to stop. Appellant then drove the car around them and proceeded on down the road, finally turning off the highway into a byroad for a distance of about 150 yards, where his car was again overtaken and caused to stop. Thereupon the officers got out of their car and saw two other persons run across a field with some jugs of liquor in their hands. In the meantime, the appellant had gone to the rear of his car and was throwing some gallon jugs of whisky on the ground which he was removing from the rumble seat of his car. The sheriff testified that up to that time they were trying to overtake the appellant and arrest him for his violation of the state license tag law, and both the sheriff and constable testified that they saw the liquor which was thrown out of the car by the appellant before any search of the car was made. In fact, it is not clear from the evidence that the car was ever searched at all.
Section 5613, Code 1930, as amended by chapter 135, section 9, Laws 1932, requires that a license tag be displayed at the rear of all automobiles, and section 5621, Code 1930, provides that, if a person operates an automobile without such license tag so displayed, he "shall be guilty of a misdemeanor, and upon conviction, shall be punished by a fine of not less than ten dollars ($10.00) or of not more than one hundred dollars ($100.00) or by imprisonment in the county jail for not more than thirty days, or by both such fine and imprisonment, for such offense."
We are therefore of the opinion that the officers had authority under the law to pursue the appellant for the purpose of overtaking and arresting him for this misdemeanor committed in their presence, and that the intoxicating liquor found in his possession while they were in pursuit of this lawful purpose was not illegally obtained, and that such liquor and the testimony of the officers in regard to the discovery thereof was admissible as evidence against him.
Affirmed.