Opinion
No. 31691.
May 6, 1935.
1. CRIMINAL LAW.
Defendant could not complain that probable cause for his arrest did not exist, where no effort was made on cross-examination of arresting officers to ascertain source of information leading to arrest.
2. CRIMINAL LAW.
In prosecution for unlawful possession of intoxicating liquor, where officers went to defendant's home without warrant for arrest or search, upon information of credible person that defendant was in automobile when it killed pedestrian, to take defendant into custody pending investigation, evidence that defendant broke bottle containing liquor as officers entered house held not inadmissible as being unlawfully obtained, since officers had probable cause for defendant's arrest.
APPEAL from the circuit court of Forrest county.
HON.W.J. PACK, Judge.
Will King was convicted of unlawfully having in his possession intoxicating liquor, and he appeals. Affirmed.
Earl L. Wingo, of Hattiesburg, for appellant.
Where an objection is made to the introduction to this line of testimony it is then the burden of the state to establish the competency of the evidence by showing that the officers not only had reason to believe and did believe that the appellant was implicated in the alleged felony, but that they had reliable and creditable information to establish that fact; and the question of the reliability and credibility of such information is addressed solely to the presiding judge whose province it is to then determine and pass upon the competency of the testimony by investigating then and there the source of such information to judicially determine its reliability and credibility.
McNutt v. State, 108 So. 721; Perry v. State, 116 So. 430; Mapp v. State, 114, So. 825.
It is true that in the case at bar the appellant did not attempt to elicit from the officer the name of the informant, but we submit that it was the burden of the state to place before the court this identical information in order that the court might determine therefrom judicially the question of probable cause and the credibility of such information relied upon by the officer at the time of the arrest without a warrant.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The authorities hold that where officers have reason to believe that a felony has been committed and have further reason to believe that the suspected felon is taking refuge at some place, they have the right to go upon such premises without a warrant and make a reasonable search in an effort to apprehend such alleged felon.
Monette v. Tony, 119 Miss. 846, 81 So. 593; Love v. State, 142 Miss. 602, 107 So. 667; Kennedy v. State, 139 Miss. 579, 104 So. 449.
This court has never held that an officer who fails to give the name of his informant has failed to show probable cause for a search without a warrant, except where the defendant has called for him to give the name of such informant and he (the officer) has failed or refused to do so.
Hamilton v. State, 149 Miss. 251, 115 So. 427; Ford v. City of Jackson, 153 Miss. 616, 121 So. 278; McNutt v. State, 143 Miss. 347, 108 So. 721; Mapp v. State, 148 Miss. 739, 114 So. 825; Hill v. State, 151 Miss. 518, 118 So. 539.
At no time in the record does it appear that the defendant objected to this testimony upon the ground that the name of the informant had not been revealed, nor did the defendant at any time attempt to ascertain from the witnesses the name of the informant.
The appellant was indicted, tried, and convicted at the January, 1935, term of the circuit court of Forrest county, Mississippi, upon a charge of unlawfully having in his possession intoxicating liquor, and was sentenced to pay a fine of three hundred dollars and to serve a period of ninety days in the county jail, from which conviction he appeals here.
A short time prior to Christmas, 1934, one Russie Holmes was run over by an automobile occupied by two negroes and being driven in the city of Hattiesburg, Mississippi, and from injuries so received said Holmes died shortly thereafter. Two deputy sheriffs began an investigation of the matter, and in the process thereof had information that the appellant was in the automobile, either as the driver or an occupant, which ran over Holmes, and at the request of the district attorney these deputies proceeded to the home of the appellant for the purpose of arresting or detaining him for further investigation. When the deputies reached the home of the appellant, one went to the front door and one to the rear door, and the officer at the front door knocked; the appellant proceeded to the rear door with a bottle of liquor in his hand, and opened the door. On seeing the officer, the appellant returned to the kitchen sink, broke the bottle, and emptied its contents into the sink. The deputy at the rear door entered and found that the broken bottle had contained intoxicating liquor. The deputies thereupon took the appellant to the district attorney's office where some further investigation was made, and the appellant was placed in the county jail charged with the killing of Holmes. The grand jury found an indictment upon the testimony of the two deputies for the offense of unlawfully possessing intoxicating liquor, which resulted in the conviction as above stated.
It is contended here that the evidence was unlawfully obtained, because there was no warrant for the arrest or search, and it is contended here also as it was below, that the evidence was insufficient to constitute probable cause.
The question for decision is: Were the officers, in going to the house and making the arrest, acting upon probable cause for the commission of a felony?
The record shows that the other occupant of the automobile was tried and convicted of manslaughter for the killing of Holmes. The officers stated that they had been informed, by a credible person, that the appellant was in the automobile and connected with the killing of Holmes.
The state did not develop from whom the information was received, but merely stated that it was from a credible person, nor did the appellant, from the cross-examination of the deputies, develop who gave the information, but, apparently, rested upon the statement of the officers.
It is argued here that the state should have developed proof showing from what source it derived this information, citing the cases of Perry v. State, 150 Miss. 293, 116 So. 430, and McNutt v. State, 143 Miss. 347, 108 So. 721.
It is true that in those cases we said that the officer was not the final judge, but it was a judicial question, and in the Perry case we held that a defendant had the right, on cross-examination, to develop the source of the officer's information and determine therefrom, or with other evidence, whether or not there was probable cause. No effort was made here to show that there was not, in fact, probable cause, or that the officers' information did not constitute probable cause.
The killing of a human being by another with a deadly weapon or instrumentality is presumptively criminal, and is either manslaughter or murder according to the circumstances developed, and if no mitigating circumstances appear, it will be presumed to be murder. It appears from the record that the other occupant of the automobile in the case at bar was guilty of manslaughter. This is sufficient showing to make a probable cause for the arrest of the appellant. When the officers entered the building through the open door and found that intoxicating liquor had been emptied into the sink, and parts of the broken bottle, such was sufficient to authorize the arrest of the appellant for violating the liquor law.
We find no reversible error, and the judgment of the court below will, therefore, be affirmed.
Affirmed.