Opinion
No. 27107.
May 7, 1928.
CRIMINAL LAW. Officer arresting without warrant defendant attempting, in his presence, to break bottles containing liquor, may testify to facts.
Where an officer has information that liquor is to be sold in a certain street or alley, and secretes himself nearby, and, when the seller and purchaser appear at the place, he emerges from his place of concealment, but does not make an arrest until after the seller has produced the whisky in view of the officer for the purpose of breaking the bottles containing it, and the officer thereupon places him under arrest for a misdemeanor committed in his presence, it is competent for the officer to testify to such facts, although he had no warrant for the defendant's arrest.
APPEAL from circuit court of Lafayette county; HON.C.P. LONG, Judge.
A.W.T. Falkner, for appellant.
The statute of Mississippi is silent as to any requirements of the use of specific words on the part of an officer in making an arrest and the action of officer Black in this case when he approached appellant and said, "All right boys" constituted a part and parcel of an illegal arrest of appellant which caused the discovery of the whisky by the officer. The officers had no warrant for the arrest or search of the appellant, and the evidence does not show that appellant was actually committing a crime in the presence of the officers at the time officer Black set in motion his acts constituting the illegal arrest of appellant. 2 R.C.L. 464; 8 L.R.A. 533 note; Yates v. People, 32 N.Y. 509.
When an officer without legal authority violates the security of a person by whatever means and in whatever manner in the placing of the person under arrest, the disclosure of the possession of intoxicating liquor on the person of the party so coerced is the result of force and coercion, and not a free and voluntary act. Burnside v. State, 144 Miss. 405, 110 So. 121. Evidence obtained by such illegal search and seizure is inadmissible. Butler v. State, 135 Miss. 885, 101 So. 193. There being no competent evidence in the case to support the one instruction given at the request of the state the said instruction should have been refused. Bullis v. State (Miss.), 7 So. 390.
Rufus Creekmore, Assistant Attorney-General, for the state.
Only one point is argued by counsel in this case, and that is that the testimony of Mr. Black was inadmissible because it was procured as a part and parcel of an illegal arrest of the appellant. This entire argument is based on the falacious assumption that the words used by the officer when speaking to the University students was the setting in motion of the arrest of appellant. The entire record shows the facts to be otherwise. Besides, under no circumstances could it be held that this was a search of the person of the defendant because there was actually no search made. If the defendant had elected to stand on his constitutional rights, then perhaps the objection made here would avail, because a search of his person could not be made until after a lawful arrest. In the case at bar, however, he did not elect to stand on his rights but instead when he saw the officer he voluntarily pulled the whisky out of his pocket and destroyed it in the presence of the officer. It becomes exceedingly difficult for me to see how this can be designated as a search.
The appellant appeals from a conviction in the circuit court of Lafayette county on a charge of having liquor in possession.
The evidence discloses that on a certain night in December, 1926, the marshal of Oxford, Miss., who was also the deputy sheriff of the county, received information that the appellant was to deliver whisky to certain parties in an alley of the city of Oxford. The marshal, accompanied by a brother officer, repaired to the alley where the whisky was supposed to be delivered, and concealed himself. Shortly after the arrival of the officers, some students from the University came upon the scene at the same time the appellant appeared. The officer stepped from his place of concealment as the appellant, with his hands in his overcoat pockets, approached the students, and said, "All right, boys," or "Hello, boys," whereupon the appellant, upon seeing him, pulled his hands out of his overcoat pockets, with a pint bottle of whisky in each hand, and smashed them together, breaking the bottles. The officer thereupon arrested the appellant, and on the trial his testimony was introduced, resulting in the conviction of the appellant.
The appellant contends that the act of the officer in leaving his place of concealment and going to the place where the appellant was, and the making of the remarks, above quoted, constituted a part and parcel of an arrest, and that, such marshal having no warrant for his arrest, such arrest was illegal, and that, consequently, the information obtained, having been caused by the officer's act, could not be received in evidence, because procured by means of an unlawful arrest. It is said by the appellant that the statute of the state is silent as to any requirements of the use of specific words on the part of an officer in making an arrest, and that the remark of the officer, "All right, boys," constituted a part and parcel of such arrest. The officer testified that he had not arrested, or attempted to arrest, the appellant at the time he drew the bottles of whisky from his pockets, but that, when he saw the appellant produce the bottles and break them, he then arrested him for a misdemeanor committed in his presence. The appellant did not testify as to what was done, resting his case upon the officer's testimony and upon the theory that the arrest was illegal.
We do not think the officer's testimony shows an arrest prior to the production of the bottles of whisky. The officer had not announced his purpose to make an arrest until the appellant pulled the bottles of whisky from his pocket, which action showed that he had violated the law in possessing intoxicating liquor, and the officer then had a right to arrest the appellant without a warrant for committing a misdemeanor in his presence. We think, from the circumstances given in the record, that the arrest was lawful, and that the evidence was properly admitted. Consequently, the judgment of the court below will be affirmed.
Affirmed.