Opinion
No. 30424.
June 12, 1933.
1. BURGLARY.
Defendant's guilt of burglary of drug store held for jury.
2. CRIMINAL LAW.
In prosecution of husband and wife for burglary, evidence that wife pointed out to officers sack afterwards found to contain stolen articles held competent against wife.
3. CRIMINAL LAW.
In prosecution of husband and wife for burglary, admitting evidence that wife pointed out to officers sack later found to contain stolen articles, if error, could not be complained of by husband, where wife testified substantially to truth of such evidence.
4. CRIMINAL LAW.
Where defendant did not request that officer be examined out of jury's presence respecting probable cause for arrest, defendant could not complain on appeal of court's permitting questioning before jury.
5. ARREST.
Evidence that defendant checked out of hotel on night of burglary and had driven about town late at night, and had applied to physician for narcotics, showed probable cause for arrest without warrant for burglarizing drug store (Code 1930, section 1227).
6. CRIMINAL LAW.
Where there was probable cause for arrest of defendant's wife for burglary, search of the home where she was rooming incident to arrest was competent against her, although not competent against husband already in jail.
7. SEARCHES AND SEIZURES.
Search, under invalid warrant, of defendant's automobile while defendant was in jail for burglary, violated constitution; automobile being "possession" of defendant (Const. 1890, section 23)
8. CRIMINAL LAW.
In burglary prosecution, admitting evidence obtained by illegal search of defendant's automobile held reversible error.
9. CRIMINAL LAW. In burglary prosecution, failure to give "one juror" instruction held reversible error.
Instruction requested was in substance that it was sworn duty of juror to vote on every ballot for acquittal of defendants unless mind of such juror was convinced beyond all reasonable doubt and to moral certainty from evidence or want of evidence, and after conferring with other jurors, of guilt of defendants, and that juror could not under his oath compromise his honest convictions as to guilt or innocence of defendants for purpose of bringing in verdict.
10. BURGLARY.
In burglary prosecution, recent possession of stolen property made prima-facie case of guilt in absence of reasonable explanation.
11. BURGLARY.
Joint possession of stolen goods by husband and wife is presumed to be that of husband until contrary appears.
APPEAL from the Circuit Court of Clay County.
Stovall Stovall, of Okolona, and B.H. Loving, of West Point, for appellant.
The evidence is insufficient to sustain the conviction of this appellant.
Sorrells v. State, 94 So. 209, 130 Miss. 300; Hogan v. State, 90 So. 99, 127 Miss. 407; Nalls v. State, 90 So. 892, 128 Miss. 277.
The trial court erred in admitting over the objection of this appellant the evidence of the search of the house of Will Lester and the seizure of the alleged stolen property.
Section 23 of the Constitution of 1890.
The affidavit for the search warrant and the search warrant itself are utterly void upon their face as they do not designate or describe with any certainty whatsoever the things to be seized nor the place to be searched, and further the same did not set forth that the affiant in the affidavit believes and has reason to believe that the goods sought to be searched for were at the place to be searched, and that the same showed no probable cause, and are therefore void upon their face, and the evidence obtained by such search and seizure is inadmissible against anybody in this case, and is inadmissible against this appellant over his objection.
Section 1329, Code of 1930; Morrison v. State, 140 Miss. 221, 105 So. 497; State v. Watson, 133 Miss. 796, 98 So. 241; U.S. v. Clark, 18 F.2d 442; Woods v. U.S., 279 Fed. 706; Davis et al. v. State, 110 So. 447.
The trial court erred in admitting over the objection of this appellant the evidence of the search of his car and of the house of Will Lester because said search was made without probable cause and not incidental to a lawful arrest.
Toliver v. State, 98 So. 342; Agnello v. U.S., 70 L.Ed. 145.
Probable cause for arrest for a felony without a warrant is a judicial question and is to be determined by the court in the absence of the jury.
Mapp v. State, 114 So. 825; King v. State, 113 So. 173.
The learned trial court committed reversible error in admitting testimony as to the statements made by Mrs. Millette when she was arrested over the objection of this appellant, for the reason that same were inadmissible as to him.
Pickens v. State, 91 So. 906; 16 C.J., page 669; Whip v. State, 109 So. 697.
The court erred in refusing the instruction requested by appellant upon the "one juror theory" and the "no compromise theory."
Under our law an instruction embodying this "one juror" and "no compromise theory" must always be given in a criminal case, and especially where there is a serious conflict in the evidence as to the guilt of the defendant, and where it does not inevitably follow from all of the evidence that the jury can reach no other verdict than that of guilty, and we plant ourselves upon this principle and this law in this case.
Speaks v. State, 136 So. 921; Sanford v. State, 125 So. 726; Thomas v. State, 60 So. 781.
In the case of Roma et al. v. U.S., 53 F.2d 1007, which is a case decided by the circuit court of appeal of the 7th circuit, on November 31, 1921, and wherein Joseph Roma and Ernest John Brown were being tried jointly for converting United States property to their possession and wherein Brown made certain statements out of the presence of Roma of an incriminating nature and wherein the court on appeal ruled that such statements were admissible against Brown, but were incompetent against Roma.
Statements by defendant in murder cases out of co-defendant's presence are inadmissible against latter.
Borum et al. v. U.S., 56 F.2d 301; U.S. v. Reid et al., 210 F.R. 486; State v. Robinson et al., 27 So. 124; Brunson v. State, 27 So. 410.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The stolen property, or rather the biggest part of it, was found on the premises occupied by the accused and his wife. It was very recently after the commission of the burglary and larceny and in the absence of a reasonable explanation of their possession of such stolen goods, the presumption arises that the possessor thereof is the burglar. In a home occupied by husband and wife, the law presumes possession of the property is in the husband, and this presumption does not disappear until the contrary somewhere affirmatively appears.
Wylie v. State, 151 Miss. 897, 119 So. 825; Garland v. State, 146 So. 637.
So far as the narcotics were concerned, Mrs. Millette, testifying for the defendant, admitted everything that was testified about by the officers with reference to the sack of narcotics. In other words, her testimony is substantially the same as the officer's testimony on that subject. Therefore, so far as the sack of narcotics is concerned, error, if any, in admitting testimony with reference to it has been rendered harmless by this testimony of the defendant's witness, and it is immaterial whether they had a search warrant, or if they had one whether it was valid or not.
Goodman v. State, 130 So. 285; Prine v. State, 130 So. 687; Rawls v. State, 120 So. 211; Bowman v. State, 119 So. 176; Rucker v. State, 118 So. 716; Weatherford v. State, 143 So. 863.
Information to justify a search without a warrant must either identify the car to be searched or the occupants of the car. In the case at bar, the parties were identified as well as the automobile in which thy were traveling. The officer had located one of the occupants of the car and arrested him and was on the lookout for the other one. He asked Will Lester if she was in his house and he said that she was and led him, and those with him, to her. Therefore, we say that he was lawfully on the premises and it was proper for him to make the arrest without a warrant.
Love v. State, 142 Miss. 602, 107 So. 667; Monette v. Toney, 119 Miss. 846, 81 So. 593; Mapp v. State, 120 So. 170; Duncan v. State, 119 So. 179; Wallace v. State, 115 So. 778; Ingram v. State, 111 So. 362.
A search of the accused, as well as his personal effects, may be made as an incident to a lawful arrest.
Toliver v. State, 133 Miss. 789, 98 So. 342; Bird v. State, 154 Miss. 493, 122 So. 539; Watson v. State, 146 So. 122.
It is next contended that it was error for the court to go into the matter of probable cause for the arrest of appellant without a warrant in the presence of the jury. No request was made by appellant that the court inquire into this matter in the absence of the jury. In matters relating to the admissibility of evidence where it is necessary to inquire into its admissibility by preliminary inquiry, it is proper for the court to let the jury retire if the court is requested so to do.
Draughn v. State, 76 Miss. 574; Randolph v. State, 118 So. 354; Perkins v. State, 135 So. 357.
The instruction in the case at bar, the "one juror" instruction, probably contains the substance of the instruction referred to in the Speaks case, 136 So. 921, but it is by no means in the same language. There are two reasons why it appears to me that it is not error to refuse this instruction. In the first place, every fact and circumstance and the overwhelming weight of the evidence points conclusively to the guilt of this accused. In the second place, the instruction appears to me to be confusing, misleading and argumentative in its nature, and this court has repeatedly held that it is not error to refuse an instruction which is confusing or calculated to mislead, or is argumentative in its nature.
Appellant, Fred Millette, was jointly indicted with his wife, Mrs. Mabel Millette, for burglarizing the drug store of A.C. Cox in West Point. There was no motion for a severance, and the two defendants were tried together at a special term of the court. On the first trial of the case there was a mistrial because the jury failed to agree; later in the term they were again put upon trial, which resulted in the acquittal of Mrs. Millette and the conviction of Fred Millette, who was sentenced to serve a term in the state penitentiary.
On the morning of June 23, 1932, A.C. Cox discovered that his drug store had been entered during the preceding night, and that some toilet articles, cigarettes, and a large quantity of narcotics had been stolen therefrom. He kept his narcotics locked in a special case. He discovered that his store had been entered from a skylight on the roof. A ladder was found leaning against the store, which was identified as being a ladder removed from a laundry nearby. The skylight had been pried up and entry made thereby. Cox discovered this early in the morning and promptly reported it to the marshal of West Point. Mr. West, the marshal, immediately began making an investigation and found that the appellant and his wife had been registered at the Brown Hotel, under the assumed name of Jerome, for some time. They had checked out at two-thirty on the morning of the twenty-third. On the night before they had been seen coming into the hotel about nine-thirty and to go to their rooms, after which the appellant was seen to leave the hotel and was not seen to return, but the porter on night duty saw them as they left, for they settled their hotel bill with him. It was discovered that the Millettes had driven about the town late at night, and it was the special duty of the officers to make observations of cars so used; they drove a car with an Arkansas tag and number. It was learned that they had applied to a physician for narcotics, and the officer testified that because of the peculiar condition of their eyes he recognized them as narcotic addicts. This evidence of the marshal of West Point was heard by the court out of the presence of the jury.
After making the investigation, Mr. West telephoned a number of nearby towns requesting the arrest of Millette and his wife, giving a description of them and of their car. Among others he called the marshal, Penn Knox, of Okolona, Mississippi. He told him that these suspects had left the town and gave him a description and asked for their apprehension. Knox replied that he knew the parties. The telephone conversation occurred in the forenoon; at about four o'clock Knox arrested, without a warrant, Fred Millette in a drug store and promptly incarcerated him in jail. En route to the jail Millette told Knox that his car was across the street and they could ride to the jail. Knox declined this offer. Thereupon he went out to the home of a justice of the peace and brought him back to town, and the latter issued two search warrants; Knox making the affidavits therefor. Then he searched the Arkansas car and found therein a rope ladder with metal rungs fastened thereon, a piece of rope of like description, and an auger and bits therefor. These articles were offered in evidence. When the justice of the peace issued the two search warrants, one to search the car and the other to search the home of Will Lester, a negro living in the country about two miles from Okolona and not within the corporation, he orally deputized Knox to serve the warrants; there being no constable, sheriff, or deputy available at the time.
Knox, accompanied by the justice of the peace and two others, went to the country to the home of Will Lester. They met him and inquired if Mrs. Millette was in his home. He replied that she was. Knox then asked him about the stolen articles; the negro denied any knowledge of them, but invited the officers to go through the house and make a search. Thereupon all the men went to the room of Mrs. Millette, where, according to Knox, they saw her drop a tube of morphine and saw two bottles of Hinds' Honey and Almond cream. He promptly placed her under arrest, informing her that he was arresting her for the robbery of a drug store in West Point the night before. He asked her where the articles were which came from the drug store. He testified that she told him if he would not put her in jail she would point out some of the articles. She pointed out a sack in the hall about three feet from the door of her room which contained some of the stolen goods. Knox gave her some morphine and did not confine her in jail. He never mentioned to Lester or to Mrs. Millette that he had the search warrants. For several reasons these search warrants were void, and they were not offered in evidence by the state on the trial of the case in the court below. Knox carried the sack of stolen articles and Mrs. Millette to the city hall, and by that time, about four-thirty or five o'clock in the afternoon, Mr. Cox and the marshal of West Point were there. Mr. Cox promptly identified many of the articles as having been in his store and stolen therefrom Millette and his wife were then carried to Okolona and placed in jail. A day or two thereafter Millette asked the sheriff if he still had the narcotics and begged the sheriff to slip some of the morphine out of the safe for him. The sheriff declined to do so, and thereupon Millette said, speaking of the narcotics: "Not all of that belongs to Mr. Cox; all of it did not come out of his store; he has got no right to this that did not come out of his store." And, according to Cox, there were some narcotics in the sack which were not from his store.
There was some contradiction of Mrs. Millette's and Knox' statements, and some facts which we do not deem necessary to state. The appellant objected to all material testimony offered by the state, and at the conclusion of its evidence moved to exclude all of it. This motion was overruled by the court.
Mrs. Millette was offered as the first witness for the defendants, and she testified that her husband had written articles for magazines under the nom de plume of Jerome, and she offered two articles in evidence. She said that about two weeks before they came from Helena, Arkansas, through Okolona to West Point. How long they remained in West Point is not shown. She said that on the night of the robbery she and her husband came into the hotel about nine-thirty and that her husband was out later for about thirty minutes. She denied any knowledge of the burglary and denied that her husband had any part therein. She admitted that they wanted to get an early start and checked out of the hotel at about two-thirty in the morning, drove to Okolona, where they had an early breakfast, and finally drove out to the home of Will Lester, a negro who was the strawboss of Millette's mother, who owned a plantation near Lester's home. She said that they had seen Lester as they went through and had arranged to rent rooms from him on their return; that when they arrived they agreed to pay Lester three dollars and fifty cents a week, which they did not pay, and that Lester provided a dinner which they ate about noon; that her husband drove to town on some mission, leaving about two P.M.; that a strange man in khaki clothes appeared there and inquired for her husband and asked permission to leave a sack for her husband. She consented and told him to place it in the hall, where it was discovered by the officers. She had not seen this stranger before or since that occasion she testified. She admitted that she pointed out this sack to the officers, but denied any knowledge of its contents. Knox did not testify that she claimed to know the contents. Her statement was in no sense a confession. She denied any knowledge of the alleged crime and denied that she was arrested until they started to leave Lester's home.
There was other evidence offered tending to contradict some statements made by various witnesses for the state. At the conclusion of the evidence the appellant moved that all the evidence be excluded and a peremptory instruction be granted, because the evidence was insufficient to sustain a conviction. This motion was made jointly and severally. Millette moved the court to exclude the statement of Mrs. Mabel Millette as to the sack and its contents, because it was not free and voluntary and was not admissible against him. He moved to exclude all the evidence with reference to the search of the car and with reference to the search of the house which Mrs. Millette claimed her husband had rented from Lester. All of these motions were overruled by the court.
The defendants requested the "one juror" instruction, which is as follows: "The court charges the jury for the defendants that it is the sworn duty of each and every juror to vote on each and every ballot of the jury for an acquittal of the defendants, until and unless the mind of such juror is convinced beyond all reasonable doubt and to a moral certainty, from the evidence or want of evidence, and after conferring with the other jurors, of the guilt of the defendants and that a juror cannot under his oath as a juror compromise his honest convictions from the evidence or the want of evidence as to the guilt or the innocence of the defendants for the purpose of bringing in a verdict, but that under his oath and under the law that a juror should never surrender such conviction from or because of any thing or reason whatsoever or for any purpose whatsoever, as long as it remains his conviction from the evidence or the want of evidence in the case, and after consultation with his fellow jurors."
First. It is insisted that the evidence was insufficient to sustain a conviction. As this case must be reversed, we do not desire to comment upon the evidence any more than is necessary to decide it, but in our opinion there was ample evidence to sustain the conviction here, although it was an issue of fact properly submitted to the jury.
Second. Appellant insists that it was error for the court below to permit the declaration of Mrs. Millette, when pointing out the sack containing the stolen goods, to be admitted against him; that the court should have excluded the evidence as against this appellant, for at the time Mrs. Millette made the statement her husband was in jail and not present. However, when Mrs. Millette went upon the stand as a witness for both, she testified to substantially the same facts as were testified to by the witnesses for the state, except she went further into detail. No state witness testified that she made a statement that amounted to a confession or any more than the bare material fact of pointing out the sack which was afterwards found to contain the stolen articles. No request was made by the appellant of the court to instruct the jury not to consider the evidence of the officers as to Mrs. Millette's statements as against him. It is not doubted that the evidence was competent as against Mrs. Millette. See Pickens v. State, 129 Miss. 191, 91 So. 906. If it be conceded that it was error to admit the officers' testimony as to Mrs. Millette pointing out the sack of stolen goods, when she went upon the stand and testified substantially to the truth of those statements the appellant cannot complain. See Weatherford v. State (Miss.), 143 So. 853.
Third. It is next contended that it was error for the state to go into the question of probable cause for the arrest in the presence of the jury. West, the marshal of West Point, was examined out of the hearing of the jury, and the court announced that it would not permit any hearsay evidence derived by West by his investigation of the crime to go to the jury. The appellant did not offer any evidence on the question of probable cause, and the court held that this evidence was sufficient to establish probable cause for the arrest of Millette and his wife. Nowhere in the record did the appellant ever request that the witness Knox be examined out of the presence of the jury; therefore, no error can be predicated on that action of the court. See Draughn v. State, 76 Miss. 574, 25 So. 153; Randolph v. State, 152 Miss. 48, 118 So. 354; Perkins v. State, 160 Miss. 720, 135 So. 357.
Fourth. It is next urged that there was not probable cause for the arrest and search of the rented premises of appellant in the home of Will Lester. We think the court below very properly held that there was probable cause for the arrest of the defendants without warrants, and that it is clear from all the evidence that the search of the house was an incident to the arrest of Mrs. Millette. Section 1227, Code of 1930, authorizes an officer or a private citizen to arrest a person who has committed a felony, or when a felony has been committed and he has reasonable grounds to suspect and believe that the person he proposes to arrest has committed it, or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. See Kennedy v. State, 139 Miss. 579, 104 So. 449.
The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits, or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409. Therefore, the search of Lester's home, incident to the arrest, was competent as against Mrs. Millette although not competent as against Millette.
Fifth. It is next contended that the search of Millette's car was unlawful and not made as an incident to his arrest. It will be remembered that the officer did not search the car in the presence of or while it was under the manual control of the appellant; he carried him to the jail, locked him therein, then went out to the home of the justice of the peace, brought the latter back to town, swore out a search warrant, and then searched the car. The car belonged to Millette. This court held, in the case of Falkner v. State, 134 Miss. 253, 98 So. 691, that section 23 of the Constitution applied not only to the home but to the "possessions" of the accused; and thereafter section 1975, Code of 1930 (chapter 244, Laws of 1924), was enacted, authorizing the search of an automobile upon probable cause, but only in cases involving intoxicating liquors. The rule in the Falkner case, together with the fact that the legislature enacted a special law authorizing the search of automobiles upon probable cause without warrant where violations of the prohibition law are involved, appears to settle that the automobile, in so far as the search for stolen goods is concerned, is the "possession" of appellant and is to be as sacred from search as his house or other possessions. In the Agnello case, supra, the court held that where Agnello had been arrested in the home of Alba and placed in jail, and his room, several blocks from the home of Alba, searched while he was being carried to jail, the search thereof was illegal, and the evidence obtained by the illegal search was incompetent as against Agnello. We think the same rule applies here. Knox searched the automobile in pursuance of his belief that he had a valid search warrant, and did not search it in pursuance of and incident to the arrest of appellant. Millette had been in jail some time, and Knox did not seize and search the car at the time he made the arrest, but the car was left during that interval parked on a street unguarded and out of the control of Knox or Millette. Legally Knox could have searched the car at the time he arrested Millette, but he did not. This evidence as to that search was material and harmful to the appellant, Millette, and should have been excluded. The attention of the court below was specifically called to this point at least twice. It is reversible error.
Sixth. The failure to give the "one juror" instruction is reversible error. See Speaks v. State, 161 Miss. 334, 136 So. 921, and authorities there cited.
It was not error for the court to grant the instruction to the state that the recent possession of stolen property made a prima-facie case of guilt against the appellant in the absence of a reasonable explanation. The explanation offered by Mrs. Millette is the same "man in the moon" defense offered in the case of Wiley v. State, 129 Miss. 196, 91 So. 906. Joint possession of a husband and wife is presumed to be that of the husband until the contrary appears. See Wylie v. State, 151 Miss. 897, 119 So. 825; Garland v. State (Miss.), 146 So. 637.
For the admission of the evidence obtained by the unlawful search of the automobile and the refusal of the "one juror" instruction, this case is reversed and remanded for another trial.
Reversed and remanded.