Opinion
No. 32520.
March 15, 1937.
1. CRIMINAL LAW.
Defendant accused of grand larceny of two cows could not complain of admission of evidence of finding of cows on ground that such evidence was obtained by unlawful search and seizure of cows in Tennessee, where defendant consented to the search.
2. CRIMINAL LAW.
Evidence that defendant accused of grand larceny of two cows had truck with tires bearing same tread as that found at place where cows were taken, and that defendant, when requested to produce his cattle, surreptitiously sent boy to get cows for purpose of concealment or removal from premises, and attempted to lead owner and officer in opposite direction, warranted conviction for grand larceny.
APPEAL from circuit court of Lafayette county. HON. T.H. McELROY, Judge.
Fred S. Toombs, of Memphis, Tenn., for appellant.
The defendant earnestly contends that the evidence used in this case was illegally obtained, and that the court erred in admitting it over the protest of the defense. When an officer, acting under the badge of legal authority, is wrongfully searching the private premises of a person, such person is not required to expressly protest and object. The law recognizes that he is objecting to such unlawful search, and his objection continues unless he expressly and voluntarily agrees otherwise after permission is asked and before the search is undertaken. The officer of the law is supposed to know that the private citizen is always objecting to an unlawful invasion of his premises. Therefore, permission to search without a search warrant must be first obtained. Otherwise, the search is illegal and the evidence secured thereby is inadmissible.
Smith v. State, 133 Miss. 737; State v. Tucker, 128 Miss. 223.
Evidence of the property seized, furthered by an unconstitutional search of his premises without a search warrant is inadmissible against the defendant.
Youman v. Commonwealth, 224 S.W. 860, 13 A.L.R. 1303; U.S. v. Slusser, 270 Fed. 818; Gouled v. U.S., 41 Sup. Ct. Rep. 61.
A search for stolen goods requires a warrant. It was so by common law before the adoption of the constitution.
Entich v. Carrington, 19 Howell's State Trials, 1067.
An unlawful search cannot be justified by what is found. A search that is unlawful when it begins is not made lawful when it ends by discovery and seizure of liquor. It was against such prying on the chance of discovery that the constitutional amendment was intended to protect the people.
U.S. v. Slusser, 270 Fed. 818.
The Constitution of the State of Mississippi of 1890 guarantees the people against unreasonable and unlawful searches and we again call the court's attention to the fact that when these parties came to Shelby County, Tennessee, there was no evidence whatever against this defendant Byrd, and, therefore, the search was unreasonable and unlawful.
Tucker v. State, 128 Miss. 211; Tremont Weeks v. U.S., 232 U.S. 383, 35 Sup. Ct. Rep. 341; State of Mich. v. Marzhausen, 171 N.W. 557, 3 A.L.R. 1505; 13 A.L.R. 1303.
Section 23 of the Constitution of 1890 of Mississippi reads that the people shall be secured in their premises, houses, and possessions from unreasonable seizure and search, and no warrant shall be issued without probable cause supported by oath or affirmation, specifically designating the place to be searched and the person or thing to be seized.
Among other things, section 26 is to the effect that the defendant shall not be compelled to give evidence against himself. The search made in this cause was a violation of both sections.
Davis v. State, 30 Miss. 86.
Webb M. Mize, Assistant Attorney-General, for the state.
The defendant consented to the search of his premises for the cows. No search was made until the defendant told the people from Mississippi that he would be glad for them to look at his cows and even went so far as to say that he would go with them.
Faulk v. State, 127 Miss. 894, 90 So. 481.
Jones, the sheriff of Lafayette county, had no jurisdiction in the state of Tennessee and he was put in the same position as any private individual of Tennessee would be in when making a search. Jones' jurisdiction was within the confines of Lafayette county only. The authorities cited by appellant are inapplicable to the case at bar because here the sheriff was in the same shoes as that of a private individual and the evidence he found was admissible.
Colburn v. State, 175 Miss. 704, 166 So. 920; Davis v. State, 175 Miss. 324, 166 So. 761.
The appellant, William Byrd, was indicted, tried, and convicted in the circuit court of Lafayette county on a charge of grand larceny of two cows belonging to one John N. Cook, and sentenced to serve five years in the State Penitentiary, from which this appeal is prosecuted. The said John N. Cook lived in Lafayette county on a farm bordering on Marshall county, the fence being on the north side along the county line. On June 5, 1936, he was the owner of certain milk cows and found that the fence along the county line had been thrown down by the pulling of the posts to which the wire was attached, and that there were certain cattle and human tracks at that point, the human tracks having a certain mark indicating a hole in the sole of the shoe. Just outside were the tracks of a truck which had a rear wheel with a certain tread distinctly visible, and this truck was traced from a point adjacent to where the fence was down into the highway leading into Memphis. Cook asked the sheriff of Lafayette county and another party to accompany him, and they proceeded until they passed the Tennessee line.
In the search for the cattle, Cook and others went to the home of William Byrd to ascertain of some one thought to be there as to cattle dealers in and around Memphis, and there saw a truck having on its rear wheel a tire with the same kind of tread seen at the place where the cattle were taken. They asked Byrd if he had any milk cattle, and he replied that he had only two which he had raised. On being asked if they might see them, Byrd said he would be glad to go with them and show them the cattle. He started toward his barn from which the cattle were turned into the pasture, then went into his house, and a little later returned to the barn. In the meantime he had a conversation with a boy, and the parties searching for the cattle then went down the trail leading to the public road, and noticed this boy going down this road in a run. Later this boy had the cows. Byrd had told these persons that the cows were in an opposite direction and started in that direction ostensibly for the purpose of locating the cows. These persons identified one cow the boy was driving as the property of Cook, and as they approached the boy, he ran. The appellant stated that if it was the property of Cook, he (appellant) had bought the cows from a party on highway 51; that he was looking for hogs, and came to where a party with a truck containing cattle was changing a tire, and suggested that he let appellant haul his cattle in, but this offer was declined, the party stating that it was only a puncture. Appellant stated that he offered to buy the cattle and had some conversation as to value; that he offered $20 for one cow, and the party stated that he would only take $30, and appellant then asked if he would take $22.50, which the party refused, but later accepted, and appellant stated that he took the one cow to his place, and that this cow had a ruptured udder and was unfit for a milk cow, but this was denied by Cook.
After this cow was identified, a deputy sheriff of Shelby county, Tenn., was sent for, and appellant stated that he had a "hot cow." He was asked if he would return to Mississippi without extradition and stated he would, and appellant was taken to Oxford, Miss., there placed in jail, and subsequently tried and convicted.
The appellant stated, when the above discussion took place, that the truck from which the cow was purchased had a Mississippi license on it, but he did not take or remember the number, and did not inquire as to the rightful owner of the cow, or where the party lived or his name.
It also appeared in the evidence that when the appellant was about 11 or 12 years old he lived, as a tenant, on the place of J.N. Cook, and had been in that community some months before, and knew all the parties in the crowd except the sheriff of Lafayette county, but that he was introduced to and knew he was the sheriff of that county.
It is assigned as error that the above evidence as to the finding of the cow constituted unlawful search and seizure, and that evidence so obtained was unlawfully admitted. It is also assigned as error that the proof of guilt is insufficient to sustain a conviction.
There is no citation of any decision or the Constitution of Tennessee to show that the facts stated constitute unlawful search and seizure under the laws of that State, but it is unnecessary to pass upon the laws of Tennessee bearing thereupon, because, under the proof, it is clear and undisputed that the appellant consented to the search, and, consequently, he cannot complain thereof.
We think the evidence is sufficient to sustain the conviction. The appellant's truck had tires with the same tread or mark as those found at the place where the cattle were taken. The appellant, on his return to the house, sent the boy to get the cows manifestly for the purpose of concealment or removal from the premises, when he attempted to lead the parties in an opposite direction.
The appellant attempted to prove an alibi by another person and wife, and by his own wife, showing that on June 5, 1936, appellant was at his home, and other parties were there as guests, at an ice cream supper, but on an examination of this testimony, there is found to be considerable conflict, from which the jury was warranted in its decision.
We find no reversible error, and the judgment of the court below will, therefore, be affirmed.
Affirmed.