Opinion
No. 37552.
October 2, 1950.
1. Criminal procedure — trial — remarks of prosecuting attorney.
Remarks of prosecuting attorney as the trial was about to begin, made as an incident of procedure and not as a calculated maneuver, by which the jury was enabled to be informed that another charge of theft was also for trial against the defendants did not require the granting of a mistrial.
2. Criminal procedure — evidence of separate offense — admonition by the court to disregard.
The sheriff overtook at night a truck carrying cattle, and a witness who accompanied him was testifying that the sheriff inquired whether the truck drivers had a bill of sale for the cattle, and volunteered the further answer that the sheriff asked them about a bill of sale of other cattle, which answer upon objection was ruled out, and the jury was admonished by the court to disregard it: Held that the admonition was sufficient to avert any possibility of injury, and that no reversible error was thereby presented.
3. Searches and seizures — inquiry by sheriff of truck carrying cattle at night — testimony as to responses by accused.
The sheriff overtook at night a truck carrying cattle, and by sounding his siren caused the truck to stop, whereupon he inquired for a bill of sale of the cattle and from whom the cattle were bought and when the truck drivers were unable to furnish, such a bill of sale or to give any believable information as to the alleged seller, they were arrested: Held (a) that an inquiry such as stated did not constitute an unlawful search, Sec. 2025 Code 1942, and held further (b) that the statements made by the truck drivers were admissible, for being voluntary in the legal sense, it was immaterial whether made before or after the arrest and whether the arrest was lawful or unlawful.
Headnotes as revised by Alexander, J.
APPEAL from the circuit court of Sharkey County; R.B. ANDERSON, Judge.
Henry Barbour, and Herman B. DeCell, for appellants.
The trial court erred in refusing to grant a mistrial because of the prejudicial remarks of the district attorney in referring to another indictment pending against the defendants.
We respectfully submit that the trial court erred in refusing to grant a mistrial when the district attorney got across to the jury the fact that another indictment was pending against the defendants in the same court. Whether his conduct was unintentional or otherwise, the same error and prejudice resulted. Furthermore, the poisonous effect of this information on the minds of the jurors could not be erased by a mere objection and corrective instruction. 39 Am. Jur., New Trial, Sec. 53; 24 C.J.S., Criminal Law, Sec. 1902e; Magness v. State, 103 Miss. 30, 60 So. 8; Parnell v. State, 163 Ark. 316, 260 S.W. 30; Darby v. State, 121 Miss. 869, 84 So. 6; Story v. State, 133 Miss. 476, 97 So. 806; Beauchamp v. State, 190 Ark. 440, 79 S.W.2d 267; Saltkill v. Commonwealth, 311 Ky. 296, 223 S.W.2d 1004; Hunt v. State, 89 Tex. Cr. 89, 229 S.W. 869; People v. Judycki, 302 Ill. 143, 134 N.E. 134; Linde v. Commonwealth, 208 Ky. 98, 270 S.W. 451; Beach v. State, 85 Tex. Cr. 262, 210 S.W. 540; Starling v. State, 89 Miss. 328, 42 So. 798; Porch v. State, 50 Tex. Cr. 335, 99 S.W. 102; Latham v. U.S., 226 F. 420, L.R.A. 1916 D 1118. See the general discussions and cases collected in 46 L.R.A. 641 (1900) and L.R.A. 1918 D 4.
It has been aptly stated that "every error presupposes injury and entitles the defendant to a reversal, unless the presumption of injury is overcome by a consideration of the whole record." Jones v. State, 21 Ala. App. 505, 109 So. 564. And in case of doubt as to the harmful effect of the prosecuting attorney's conduct, such doubt is resolved in favor of the accused. Fifer v. State, 100 Tex. Cr. 518, 272 S.W. 164.
The trial court erred in refusing to grant a mistrial because the State's evidence referred to another offense with which the defendants were alleged to be connected. The evidence was clearly incompetent. 22 C.J.S., Criminal Law, Secs. 682-683. Mississippi cases have uniformly followed this general rule. See, for example, a recent case, Scarbrough v. State, 204 Miss. 487, 37 So.2d 748.
If neither I nor II is sufficient to require a mistrial, still the cumulative effect of these errors is so prejudicial that the trial court erred in overruling the motion for a new trial. 24 C.J.S., Criminal Law, Sec. 1902e. The trial court erred in admitting the evidence obtained by illegal search and seizure.
By a long line of cases beginning with Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377 (1922) this Court has consistently held that evidence obtained by unlawful search and seizure is inadmissible in a criminal trial, and a substantial body of authority supports this view. See cases collected in 24 A.L.R. 1408; 32 A.L.R. 408; 41 A.L.R. 1145; 52 A.L.R. 477; 88 A.L.R. 348; 134 A.L.R. 819; and 150 A.L.R. 566. See also discussion in Underhill's Criminal Evidence, Secs. 795-801 (4th Ed. 1935).
We respectfully submit that the search of the defendants' vehicle was illegal; that all evidence thereby obtained was inadmissible; and that the trial court erred in overruling the defendants' timely objections thereto.
In order to conduct a search without a warrant an officer must have "probable cause", without which the search is illegal. See, for example, McGowan v. State, 184 Miss. 96, 185 So. 826.
The testimony indicates that the only ground for suspecting the defendants was that they were transporting cattle at a late hour. This ground amounts to nothing more than a mere hunch and falls far short of the rather rigid test laid down in McGowan v. State, 184 Miss. 96, 185 So. 826: Whether the facts available are sufficient to convince an ordinarily reasonable man. The standard is thus objective and not subjective; it is not sufficient that the searching officer himself thought there was probable cause and accordingly acted. There must be more. Thus, where the officer's informant has no personal knowledge, there is not probable cause even though the officer believed the information to be true and acted thereon. Elardo v. State, 164 Miss. 628, 145 So. 615.
The test is thus strict. The law of search and seizure is construed favorably toward the citizen and strongly against the State. Elardo v. State, supra; Jones v. State, 170 Miss. 741, 155 So. 416.
It may be suggested that because the sheriff and Davis saw the cow in the truck, sufficient information was gained without a trespass so as to make a search proper. Thus, in Goodman v. State, 158 Miss. 269, 130 So. 285, the officers observed whiskey being thrown from an automobile, and the search was proper, because their eyes "committed no trespass". That case is sharply distinguishable from the case at bar, where the cow was observed in the back of the truck. Knowledge of possession of the whiskey per se would be sufficient probable cause. But mere knowledge of possession of a cow would give rise to no such probable cause. Possession of the whiskey would make out a prima facie case; possession of the cow is presumptively lawful.
Even if admission of each item of incompetent evidence was not reversible error, still the cumulative effect was highly prejudicial, and the trial court thus erred in overruling the motion for a new trial.
The court admitted various pieces of incompetent evidence obtained by the illegal search, and even if it be conceded that the ruling on each would not be sufficient to constitute reversible error, yet the cumulative prejudice is sufficient. Accordingly, the trial court erred in overruling the defendants' motion for a new trial. Scarbrough v. State, 204 Miss. 487, 497, 37 So.2d 750.
Joe T. Patterson, Assistant Attorney General, for appellee.
It is argued in appellants' able brief that the trial court erred in refusing to grant a mistrial because of the prejudicial remarks of the district attorney in referring to another indictment pending against the defendants. Appellant cites numerous cases dealing with misconduct of counsel, and prejudicial statements of such nature as to influence the verdict of the jury; however, none of the cases cited deal with the question presented by the case at bar. All of the cases cited by appellant deal with conduct and statements made before the jury either in the trial or argument of the case. In the case at bar, the district attorney was not in the trial of the case, neither was the district attorney arguing the case to the jury. In fact, the jury had not been selected to try the case. The district attorney, in referring to another case against the defendants, was addressing his remarks to the court in response to the court's calling of Case No. 795 on the docket which appeared to be a case against the defendants but was not the case the district attorney had elected to try against the defendants, and the district attorney merely apprised the court of that fact.
It is argued that the court erred in refusing to grant a mistrial because the State's evidence referred to another offense with which the defendants were alleged to be connected.
There is nothing in the entire examination of any witness for the State by the district attorney to indicate an effort on the part of the district attorney to prove that the defendants were guilty of another and similar offense. It will also be observed that the court specifically charged the jury to disregard any statement about any other bill of sale. Such an answer by the witness in answer to the question propounded by the district attorney could not be calculated to prejudice the minds of the jury to such an extent that the verdict might have been different had such answer not been made in view of the other testimony in the case.
It is argued that if neither I nor II is sufficient to require a mistrial, that the cumulative effect of the two errors is so prejudicial that the trial court erred in overruling the motion for a new trial. If neither constituted error, then the cumulative effect of both could not be error.
The appellants' fourth assignment of error is that the trial court erred in admitting the evidence obtained by illegal search and seizure of the truck of appellants.
Section 2025 Code 1942 provides that for any person to haul, transport or carry any cattle upon and over the public highways, roads and streets of this State by means of a motor vehicle such person shall have in his possession either:
"(a) A bill of sale showing: (1) From whom such cattle or swine were purchased; (2) Description of such cattle or swine, with brands or earmarks, if any; (3) Signature and address of the seller; and (4) The date of sale and delivery; or
(b) A certificate showing that the person transporting such neat cattle or swine is the bona fide owner."
Sub-section (B) of said Section provides — "Any sheriff, constable, or police officer shall have the power to inspect any cattle, sheep, mules, horses and swine in the process of transportation upon the highways of Mississippi."
Under the authority of the above referred to section, the sheriff had a right to stop the truck, seeing that cattle were being transported therein around two o'clock in the morning, and ascertain whether or not the person transporting said cattle had a bill of sale for the same or a certificate of ownership as required by said section. The very purpose of the statute is to accomplish what was accomplished on that night in locating stolen cattle. If a sheriff, upon seeing cattle being transported in the midnight hours, is required to obtain a search warrant before stopping a truck and ascertaining whether or not said cattle belonged to the person transporting same, then the purpose of the statute has been defeated, and with good roads and high-powered trucks, a person transporting stolen cattle can easily be many miles away and perhaps to an adjoining state before the sheriff is sufficiently armed to even make inquiry as to the ownership of the cattle.
The record in this case clearly shows that there had been cattle stealing in Sharkey County, and that the sheriff, in compliance with his duties as such, was out patrolling the highways in an effort to locate stolen cattle.
This case is almost directly in point with the case of Lott v. State, 204 Miss. 610, 37 So.2d 782.
As to the guilt of the defendant, Lamar Huggins, as well as the guilt of the defendant, Barney Huggins, we submit that such was a question for the jury. In the case of Moody v. State, 181 Miss. 277, 179 So. 335, a very similar question was presented and in the syllabus, it is stated — "The recent possession of stolen property, unless satisfactorily explained at the time, makes a prima facie case that party in possession stole property.
"In prosecution for grand larceny of cattle, whether the defendant was a participant in crime with knowledge that cattle were being stolen was for jury under evidence that at time of arrest defendant was driving truck carrying cattle, that defendant was a brother-in-law of one of the participants and a neighbor of the others, and that, though cattle were loaded late at night, defendant took charge without asking for any explanation." See also Haney v. State, 190 Miss. 568, 24 So.2d 778; McDougal v. State, 199 Miss. 39, 23 So.2d 920; Henderson v. State, 187 Miss. 166, 192 So. 495.
Barney and Lamar Huggins, brothers, appeal from a judgment of conviction for grand larceny of two head of cattle. The fact of a theft and the early discovery and identification of the cattle in the possession of appellants is without dispute. The errors assigned may be grouped about three points, which we shall discuss in order.
(Hn 1) The first assignment is directed to the refusal of the court to grant a mistrial on account of alleged prejudicial remarks of the prosecuting attorney. The text of these remarks is not of record and must be spelled out of the objections made by counsel and the ruling of the trial judge, which latter is in the following language: "The Court called case No. 795, and the District Attorney stated, just as Mr. Barbour has related, the theft of some cattle belonging to Jimmie Davis was involved, then Mr. Barbour stated to the Court that that was not the case the District Attorney had announced he was going to try today, and then the District Attorney says, `We will try the other case.' The motion is overruled."
The "other case" referred to is the case now on appeal. The motion to which the court's ruling responded alleged that the district attorney stated to an empanelled jury that he was calling for trial an indictment involving the theft of cattle belonging to one Jimmie Davis, but later stated that the announcement of the prosecutor was made before the selection of a jury had begun, but in the hearing of the prospective jurors. The latter version is probably the more accurate since a jury would hardly be empanelled and placed in the box before the case for trial had been agreed upon and the parties had announced ready. The disclosure of a second prosecution was therefore provoked by the statement and objection of the defendant.
During the trial of every case, it is inevitable that there be incidents, more or less trivial, which operate to the advantage of one party or the other. Here, the announcement made was not a calculated maneuver and finds parallel in the routine sounding of a criminal docket which may disclose the identity of the several defendants, some of whose names may appear more than once. It would not do to hold that this typical incident of criminal trial procedure could create a prejudice which would override the oath of the jurors and their sworn voir dire examination.
(Hn 2) It is next assigned for error that the State improperly introduced evidence of a separate offense. A witness, Davis, was on the stand. He had accompanied the sheriff on a patrolling expedition to investigate the theft of cattle. After overtaking appellants at night in a truck with the cattle here involved, the sheriff inquired whether they had a bill of sale covering the animals. In reply to a question whether the sheriff had made such inquiry, the witness replied: "He asked them about a bill of sale of other cattle." The examination had theretofore covered only the existence of a bill of sale to the cattle here involved. The answer of the witness was not responsive and upon objection the court ruled it out and admonished the jury to disregard such reference. It is a rare case where the possibility of injury is not averted by such admonition. See Shaw v. State, 188 Miss. 549, 195 So. 581. Moreover, the cross-examination for the defendants disclosed the facts of other similar thefts in the same neighborhood, including the theft of cattle belonging to the witness, and the failure of appellants to exhibit a bill of sale. We do not find any reversible error here.
(Hn 3a) The other assignments cluster about the contention that the incriminating evidence was procured through an illegal search and seizure. The relevant facts are that the sheriff and the witness Davis had taken to the highway prospecting for information relative to recent thefts of cattle. About 2 o'clock in the morning they spied, upon the highway ahead, a truck, and at a distance estimated as great as a quarter of a mile, the presence of a cow therein was clearly visible. The sheriff speeded up his car and overtook the truck, and by blowing his siren and crowding the truck, it came to a stop. The appellants were recognized and identified. There was no search of the truck except such as was available to open vision. Appellants were then asked if they had a bill of sale to the cattle and replied in the negative. When requested to state where and of whom they had bought them, they replied vaguely, referring to the seller as "Wilson" or "Henderson."
Whereupon, the sheriff left appellant Barney Huggins in charge of the truck with a request to bring it into Rolling Fork. Appellants were not then arrested, though they were subject to the supervision accorded to the sheriff by Code 1942. Section 2025, which requires any one hauling cattle to have a bill of sale therefor and authorizes the sheriff to make inspection.
When appellants proved unable to identify the alleged seller or give satisfactory explanation for hauling cattle in fact stolen, and in the middle of the night, the sheriff then took them into custody.
We find no evidences of an unlawful search. Even as a roving eye may commit no trespass, so must we refrain from identifying a mere prodding by inquiry into an unlawful search. Nor is the matter of a confession involved. There was no admission of guilt but rather an attempt at denial. Every person who flounders in a cloud of suspicion and interprets an occasion as one demanding explanation, must assume the risk that a hurried improvisation may enmesh him with its own inconsistencies.
(Hn 3b) We find beside the point the contention that the arrest was unlawful. There was no evidence adduced which sprouts from the fact of arrest. If we put aside consideration of the testimony of the sheriff that he made no arrest until after the initial suspicions had been reinforced by circumstances and statements to the degree of probable cause, we are faced with the truth that the statements of the defendants were not coerced by, but were merely coincident with the arrest. Wherefore, even had the arrest been unlawful, the voluntary statements of the accused would not be thereby excluded. Quan v. State, 185 Miss. 513, 521, 188 So. 568; Brinegar v. U.S., 10 Cir., 165 F.2d 512. Moreover, they are not involuntary merely by reason of having been made under arrest, lawful or otherwise.
The record presents a case for the jury and we find no reason to displace the finding.
Affirmed.