Opinion
No. 33011.
January 31, 1938.
ARREST.
Where sheriff of Tippah county informed sheriff of Union county by telephone that new coach automobile of certain make was proceeding in certain direction on a certain highway, that automobile was driven by a white man accompanied by a yellow negro, and that automobile was loaded with whiskey, the sheriff of Union county had probable cause to arrest defendant, the driver of automobile, and search automobile without a warrant, notwithstanding sheriff of Tippah county did not know the name of his informer.
APPEAL from the circuit court of Union county. HON. T.H. McELROY, Judge.
R.L. Smallwood, Jr., of Oxford, for appellant.
The court erred in holding that the statements made to the sheriff of Union County by the sheriff of Tippah County constituted probable cause for the search of the appellant's automobile, and in allowing the result of the search to be introduced in evidence over the objection of the appellant.
Taking the testimony of Sheriff Rogers as most favorable to the State and it can be summed up in that the only information that the sheriff had that in any manner would constitute probable cause was that a white man and a yellow negro were coming toward New Albany in a new Plymouth automobile with a load of whiskey. If this officer had applied for a search warrant to be issued on that information it certainly would not have been definite enough for any officer to have issued a search warrant because it did not definitely describe or definitely designate any particular person or any particular automobile.
Lenoir v. State, 132 So. 325, 159 Miss. 697; State v. Messer, 108 So. 145, 142 Miss. 882.
In order for the officer in this case to have sufficient probable cause to search the appellant's automobile the information must have been specific to either identify the car from other cars or the persons must be identified from other persons.
I wish to call the court's attention to the fact that in every case that has been before this court in which the court held that it was probable cause for an officer to make a search, it was necessary for the probable cause to contain a description of the persons or description of the automobile. In this case neither are given.
Story v. City of Greenwood, 121 So. 481; Moore v. State, 103 So. 483.
The appellant next contends that as to this information constituting probable cause that it was not given by a credible person. We do not mean to say that the sheriff of Tippah County is not a credible person but certainly this sheriff in Tippah County could not give to the sheriff of Union County any better information than had been given to him (the sheriff of Tippah County). The sheriff of Tippah County had no actual knowledge of any whiskey coming toward New Albany for he was relying entirely upon the information that had been given to him by a stranger that he had never seen before.
Elardo v. State, 145 So. 615, 164 Miss. 628; Norman v. State, 146 So. 639, 167 Miss. 690.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
One of the contentions made here by appellant is that the sheriff of Tippah County did not have information of a credible nature and that consequently the sheriff of Union County stood in no better position than the Tippah sheriff. This contention of appellant is met by the decision of this court in Elardo v. State, 164 Miss. 628, 145 So. 615.
Story v. Greenwood, 153 Miss. 755, 121 So. 481.
We think that the information which the Tippah sheriff gave the Union sheriff was, in substance, the information which the officers acted on, as set out in the case of Donovan Moore v. State, 138 Miss. 116, 103 So. 483. There the officer testified that his information was as follows: "That on the 24th day of April, 1924, he was called over the telephone by an officer of an adjoining county, who stated to him that an automobile containing whiskey was making rapid approach to the City of Jackson and would pass into the city of Jackson, over Pearl River bridge, giving witness a description of the automobile and the tag number of same."
There is little, if any, difference in the character of information which was held to be sufficient in the Moore case, supra, and that of the case at bar.
The information with reference to the occupants of the car, plus the designation of the automobile as being a Plymouth, was, in our judgment, enough to take the place of the tag number, as was the case in the Moore prosecution. We submit that the information which the sheriff of Tippah County gave the sheriff of Union County was sufficient to constitute probable cause for a search without a warrant and that the evidence thereby obtained was admissible and that the judgments should be affirmed.
The appellant, Roger Parks, was convicted of the unlawful possession of intoxicating liquor, and from the judgment rendered in the court below an appeal was prosecuted to this court.
On the evidence submitted there is no question but that he had in possession in the car a considerable quantity of whisky when he was pursued. The conviction rests upon the evidence obtained by officers who made the search and arrest without a search warrant. And the only question here presented is as to the legality of the search made by the sheriff and his fellow officers. The facts in regard to that point are as follows: The sheriff of Tippah county called the sheriff of Union county, Lee Rogers, the main witness for the state, by telephone, and told him that a new Plymouth coach automobile was proceeding south on highway No. 15, from Ripley toward New Albany — these being the county seats of Tippah and Union counties respectively — the car being loaded with whisky; and that if he would station himself on highway No. 15 at once he could intercept the automobile. Ripley and New Albany are about eighteen miles apart. The sheriff of Union county was further informed by the sheriff of Tippah county that the new Plymouth loaded with whisky was driven by a white man accompanied by a yellow negro.
The sheriff of Union county promptly acted on the information, and in company with other officers, drove his car about three miles north toward Ripley on highway No. 15, and there he saw a new Plymouth coach automobile proceeding south, occupied by a white man and a yellow negro. This car passed the officers, who then gave chase, following the whisky car into New Albany, then turning out on highway No. 78 toward Myrtle. The driver of the whisky car, Roger Parks, the appellant, ignored a red light; and the occupants of the car began to throw the whisky from the automobile. The car was finally overtaken by the officers, who found ample evidence of the presence of whisky in the car — the seat was soaked, and broken bottles which had contained whisky were found therein. Some of the whisky thrown from the car was subsequently recovered by the officers.
The court below permitted the appellant to attempt to show that the sheriff of Tippah county did not have information of a credible nature. In other words, he did not know the name of his informer in regard to this whisky. However, it is not disputed that the sheriff of Tippah county, in giving the information over the telephone to Rogers, the sheriff of Union county, stated it as a fact. There is no merit in this contention. See Story v. City of Greenwood, 153 Miss. 755, 121 So. 481, and Elardo v. State, 164 Miss. 628, 145 So. 615. The communication from the sheriff of Tippah county was a statement of fact, which furnished probable cause, as such, to the sheriff of Union county; and the sheriff of Tippah county is a credible person.
We think there is no merit in the contention that the sheriff of Union county did not act upon probable cause, when he met a new Plymouth coach automobile, driven by a white man accompanied by a yellow negro, traveling southward, within a short time after he had the information that such car would be seen on the highway near New Albany. The car answered the description given by the sheriff of Tippah county, and the fact that it was being driven south toward New Albany by a white man accompanied by a yellow negro, afforded probable cause for search and arrest of the appellant under the circumstances. There was a sequence of description as to persons, car, place, and time which justified the action of the sheriff. In these essential particulars this case is differentiated from the case of Lenoir v. State, 159 Miss. 697, 132 So. 325, wherein the only information was to the effect that some negroes were hauling whisky to West Point, Miss., and that a car would be down that night — not specifying any particular person or car, or any particular time. The description was so general as to amount to nothing. Likewise, we do not think that the case of State v. Messer, 142 Miss. 882, 108 So. 145, can support appellant's contention here. In that case the arresting officer was informed that Messer was near Epley, in Lamar county, and that he had whisky in his car; this was held to be too general.
We are of the opinion that the information given here was as specific as that considered in Donovan Moore v. State, 138 Miss. 116, 103 So. 483. The only difference being, as argued by appellant, that in that case the informer told the arresting officer the number of the car's license tag. This is more than offset by the fact that the informer here gave the arresting officer information so detailed that it was the equivalent of a number tag when he described the car and its occupants and the circumstances, so far as the arresting officer was concerned.
The argument that there might have been hundreds of yellow negroes and white men driving a new Plymouth coach automobile at a particular time and in a particular direction does not accord with common sense. We think the sheriff, as a reasonable man, was justified in pursuing the car and arresting occupants of the car, one being the appellant in this cause. There were too many coincidences for us to hold that the sheriff did not act upon probable cause.
We find no reversible error herein.
Affirmed.