Opinion
No. 35952.
October 8, 1945.
1. INTOXICATING LIQUORS.
Evidence did not sustain conviction of unlawful possession of whiskey, found in room to which defendant had no access.
2. CRIMINAL LAW.
Where defendant was entitled to directed verdict in county court, circuit court should have discharged defendant, and hence Supreme Court in reversing judgment of circuit court affirming conviction would discharge him (Code 1942, secs. 1616, 1962).
3. ARREST.
Where sheriff had no warrant for arrest of defendant and defendant had not committed any crime in sheriff's presence, arrest of defendant and search of her person were illegal.
4. CRIMINAL LAW.
Whiskey found in room by use of key obtained by illegal search of defendant's person was inadmissible.
APPEAL from the circuit court of Forrest county, HON. F.B. COLLINS, Judge.
C.F. Pittman, of Hattiesburg, for appellants.
The affidavits fail to charge that the alleged possession was the "unlawful possession or possession contrary to law" or words to that effect. Hence, they do not charge the defendants with any violation of law whatever under the statute.
Reed v. State, 171 Miss. 65, 156 So. 650; City of Lumberton v. Frederick, 165 Miss. 456, 143 So. 488; Code of 1930, Secs. 1974, 1975, 1977, 1978; Code of 1942, Secs 2613 et seq.; Laws of 1908, Ch. 115.
The three defendants were indicted separately and it was error for the court to consolidate the cases over the objection of the appellants and their attorney.
Wellborn et al. v. State, 140 Miss. 640, 105 So. 769; Code of 1942, Secs. 2514, 2515.
We come now to consider the search warrant and affidavit for the search warrant and evidence obtained regarding any whiskey. It is true the affidavit and search warrant describe a tenant house belonging to Mattie Lee Lewis and the officers proceeded to search that house and found a tenant occupying the same and found some whiskey therein. But the trouble is that the evidence fails to connect Mattie Lee Lewis in any way with the possession of whiskey directly, intermediately, actively, or constructively. True, it was in one of her houses, a tenant house, but she was found not connected with the whiskey and was not in the possession of it or constructively in possession of whiskey. She owned the house but did not live in it. The record shows that Mattie Lee Lewis occupied another house situated across the street or alley and had no connection with the house where the whiskey was found except she was the owner and a key was found in her possession. It was natural for Mattie Lee Lewis to carry the key to her house. It was her house but she was in no way responsible for any whiskey or anything else found in the house. There was no proof to the effect that she was connected in any sense with the possession of whiskey. Indeed, the search of Mattie Lee Lewis's person was utterly unlawful and all the evidence as a result of that search was improperly introduced. The officers went first to the tenant house where the whiskey was found. Then they went across the street to the house and home of Mattie Lee Lewis where she lived, a distance of 150 to 300 feet. They arrested her and the first thing they did was to search her and found a key to the tenant house where the whiskey was. The officers had no right, they had no business, arresting Mattie Lee Lewis, and their conduct in arresting her was utterly unlawful and the search of her person after they had arrested her was utterly unlawful and the finding of the key was utterly unlawful, so that all they had to say about finding the key on the person of Mattie Lee Lewis and finding any whiskey in the tenant house, resulted from the unlawful arrest and search of Mattie Lee Lewis, and should have been excluded. Because Mattie Lee Lewis is not connected with the unlawful possession of whiskey by positive proof nor by constructive proof, then motion for a peremptory instruction for her should have been sustained.
Greek L. Rice, Attorney General, by Geo. H. Arrington, Assistant Attorney General, for appellee.
Points not raised by assignments of error in the circuit court, other than as to jurisdiction, cannot be raised in the Supreme Court on appeal.
City of Hattiesburg v. Pritchett, 160 Miss. 342, 134 So. 140; E.L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350; Johnson v. State, 154 Miss. 512, 122 So. 529; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 130 So. 745; State v. Carraway, 160 Miss. 263, 134 So. 846.
There is no merit in the contention that the affidavits are void and therefore the lower court had no jurisdiction, and the trial was a nullity. The statute upon which the affidavits were founded is Section 2613 of the Code of 1942 (Section 1974, Code of 1930). This statute does not make "unlawful" a description of the offense and while the title of the statute states that it is unlawful to keep, have in possession, or give away intoxicating liquors, that does not control and is not a part of the statute defining the crime. It will be noted from the statute that the exceptions are contained in other parts of the chapter on intoxicating liquors and it is not necessary to negative in the indictment exceptions contained in the statute not embraced in the statute announcing the offense. This is expressly provided by Section 2651 of the Code of 1942 as applied to the offense here involved, and it is also a general rule of pleadings and indictments that where one section of the statute describes the offense and another statute makes certain exceptions, it is not necessary for the indictment to negative the exceptions named in a subsequent statute.
Frazier v. State, 141 Miss. 18, 106 So. 443; Forbert v. State, 179 Miss. 66, 174 So. 248.
If the exception is one in the statute defining or describing the offense, then the indictment should negative the exception but not otherwise, and the exceptions contained in the statute as applied to intoxicating liquor under which it may be legally possessed are contained in Section 2652 of the Code of 1942, and Section 2633 as to unlawful possession of stills, and the burden of proof is upon the defendant to establish the exceptions as a defense if they contend the possession is lawful, as to which there is not a suggestion in this record. Furthermore, the indictment must be demurred to for all defects appearing on the face thereof. Section 2449, Code of 1942. Furthermore, the affidavit in this case is not an indictment and it is expressly provided by Section 2535 of the Code of 1942 that when an appeal is presented to the circuit court in an appeal in any criminal case from a justice of the peace or municipal court, it shall be permissible to amend the affidavit, pleading or proceedings so as to bring the merits of the case appealed to trial on the charge intended to be sought out in the original affidavit, etc. The provisions of this section apply to all prosecutions in inferior courts where the prosecution was founded upon affidavit, it being the policy of the law to permit amendments so as not to delay the trial or to defeat justice. All amendable defects are cured if not objected to prior to the trial and there was no demurrer to the affidavit involved in this case or to any proceedings in the county court involving validity of the affidavits in question.
Cannon v. State, 140 Miss. 217, 105 So. 501; Mississippi Cent. R. Co. v. Maples, 107 Miss. 720, 65 So. 644; Kohlman v. First National Bank of Meridian, 71 Miss. 843, 15 So. 131; Blumenberg v. State, 55 Miss. 528; Wilkinson v. State, 77 Miss. 705, 27 So. 639; Lee v. State, 138 Miss. 474, 103 So. 233.
I call the court's attention to Section 169 of the Constitution of 1890, which provides: "The style of all process shall be `The State of Mississippi' and all prosecutions shall be carried on in the name and by authority of the `State of Mississippi,' and all indictments shall conclude `against the peace and dignity of the state.'" The affidavit charges that the acts there charged were against the peace and dignity of the State of Mississippi and this necessarily means that the acts charged were unlawful. How can anything that is lawful be against the peace and dignity of the State of Mississippi? No lawful act is a crime and no lawful act can be against the peace and dignity of the State of Mississippi. This appears to be so certain that it does not seem to have been questioned in this state.
See Myles v. Oklahoma, 236 P. 57, 44 A.L.R. 129; State v. Tibbits, 86 Me. 189, 29 A. 797.
Separate indictments against persons charged with the same crime may properly be ordered tried together.
Wellborn v. State, 140 Miss. 640, 105 So. 769; Commonwealth of Massachusetts v. Samuel Gallo, 175 N.E. 718, 79 A.L.R. 1380; Code of 1942, Secs. 2514, 2515.
The search warrant was served on the appellant, Matthew Nelson, who lived in the building where the liquor was found. He did not testify nor did any of the defendants testify in the case. The warrant was served upon him and he stated that he lived there, but made no defense in the county court as to his control or ownership or private possession of the room searched. The fact that he was occupying the house in which the liquor was found, coupled with the fact that the door to the room containing the liquor was nailed up, would indicate and be sufficient for the jury to infer that he was in possession of the liquor. He does not show nor does the evidence anywhere show that he made any denial or disclaimer to the officers when the liquor was found as to it being his. He lived in the house described in the warrant and in which the liquor was found and his admission that he lived there was equivalent to admitting his possession of the entire building in the absence of specific disclaimer.
The jury had a right, from the facts developed by the search, to conclude that Mattie Lee Lewis and Matthew Nelson were both in possession of the room in which the liquor was found. The door between the room in which the liquor was found and the room occupied by Nelson was nailed up and Mattie Lee Lewis was not in the house at the time of the search but was found to be in possession of a key which unlocked the door of the room in which the liquor was found. It is true that the search warrant was not served on Mattie Lee Lewis and she was arrested without a warrant on the fact that liquor was in the room of a house owned by her and which house was just across the street from the house in which she lived. If finding the liquor under the circumstances shown justified the arrest of Mattie Lee Lewis, then, of course, the key found in her possession would indicate that she had access to the room and that she was interested in the liquor therein contained. The jury was entitled to draw reasonable inferences from the testimony and, as neither of the defendants testified, the jury was warranted in assuming that both Matthew Nelson and Mattie Lee Lewis were interested in the liquor, otherwise they would have disclaimed any interest in it and testified as to their innocence. It is true that a defendant does not have to testify and no presumption arises against him per se for failure to testify; but, where the evidence raises an inference or where a conclusion of guilt can be drawn from the testimony, including inferences from the testimony, the jury may draw all reasonable inferences and may conclude in this case that both appellants were in possession of the liquor.
Separate affidavits were filed in the County Court of Forrest County against Mattie Lee Lewis, Cornelius Henderson, and Matthew Nelson, alleging that each of them did have in his (or her) possession whiskey against the peace and dignity of the State of Mississippi. Over the objection of the defendants these cases were consolidated by the county court and tried together, but separate judgments of conviction were rendered against each.
On his motion for a new trial the county court set aside its judgment and the jury verdict against Cornelius Henderson and discharged him. The other two appealed separately to the circuit court, where the judgments against them were affirmed.
The evidence on which the appellants were convicted was obtained by means of a search warrant describing a lot owned by Mattie Lee Lewis, but she lived in a house on another lot separate from and not included in the one described in the search warrant. The sheriff who served this warrant found Matthew Nelson in the front room of the house described therein, who admitted that he lived there. A door leading from this room into an adjoining room was nailed and boarded up on the inside of the adjoining room. This door was broken down by the sheriff who then entered the room and found therein a lot of whiskey in bottles. Another door to this room, but which did not lead into the one occupied by Nelson, was locked. The sheriff then went across the alley to the house where Mattie Lee Lewis lived, arrested and searched her and found on her person a key which fitted the lock of the door to the room in which the whiskey was found and with which the sheriff unlocked it. No other person is shown to have had a key to this lock. All of this evidence was objected to. The appellants' complaints are: (1) That the county court was without power to consolidate and try these cases together, (2) that all of them were entitled to a directed verdict of not guilty, and further (3) as to Mattie Lee Lewis that the search of her person, which resulted in the finding of the key to the lock of the room in which the whiskey was stored, was illegal and the evidence relative thereto was incompetent.
As to Matthew Nelson the evidence is wholly insufficient to support the verdict against him, for while he occupied one of the rooms of the house searched, the evidence disclosed that he had no access to the room in which the whiskey was found and there is nothing in the evidence to indicate that he had any connection whatever with this whiskey. Consequently the court below should not have affirmed the judgment against him but should have reversed it on the ground that the county court should have granted his request for a directed verdict of not guilty. Had the county court granted Nelson's request for a directed verdict it would not have been necessary for it to have submitted the case to the jury but it should have simply entered the verdict which it had directed the jury to find and rendered a judgment accordingly.
Had the circuit Court reversed this judgment its duty would have been under Sections 1616 and 1962, Miss. Code of 1942, to render the judgment which the county court should have rendered, and our duty here is to render such judgment as the circuit court should have rendered from which it follows that the judgment against Nelson will be reversed and a judgment will be rendered discharging him.
The arrest of Mattie Lee Lewis was illegal for the reason that the sheriff had no warrant therefor and she had not committed any crime in his presence, consequently the search of her person, by means of which the key to the room containing the whiskey was found, was illegal and therefore the evidence obtained thereby should have been excluded. The judgment of the court below as to her will be reversed and (as to her) the cause will be remanded.
It will not be necessary for us to decide whether the court below committed error in consolidating and trying these cases together for the reason that error, if any therein, would result only in a reversal and remand of the case against Mattie Lee Lewis and the same result follows because of another error committed against her.
Reversed, Matthew Nelson discharged, and remanded as to Mattie Lee Lewis.