Opinion
No. 27891.
May 13, 1929.
1. WITNESSES. Owner of automobile in which liquor was discovered was entitled to have sheriff disclose information claimed to authorize search without warrant ( Hemingway's Code 1927, section 2283).
In proceeding under Hemingway's Code 1927, section 2283, for condemnation and sale of automobile for transporting intoxicating liquor, owner of car, in which liquor was discovered by sheriff acting without a search warrant, was entitled to have sheriff disclose information on which he acted in making search.
2. INTOXICATING LIQUORS. Excluding testimony of witness denying having given information to sheriff to justify search of automobile without warrant held erroneous ( Hemingway's Code 1927, section 2283).
In proceeding under Hemingway's Code 1927, section 2283, for condemnation and sale of automobile for transporting intoxicating liquor, the exclusion of evidence of witness denying having given information to sheriff so as to authorize search without a warrant held erroneous, in that it should have been considered in determining whether or not sheriff had information sufficient to constitute probable cause that liquor was being transported.
3. CRIMINAL LAW. Whether case should have been delayed to permit defendant to obtain presence of witness rested in judicial discretion of trial court.
Whether court should have delayed case in order to permit defendant to obtain presence of witness, claimed to have furnished information on which sheriff searched automobile for liquor without a warrant, rested in sound judicial discretion of trial court.
APPEAL from circuit court of Wilkinson county, HON. R.L. CORBAN, Judge.
Proceeding by the state, on the relation of J.Y. Chapman, sheriff, against P.F. Perry for the condemnation and sale of an automobile. Judgment condemning the automobile, and defendant appeals. Reversed and remanded.
Tucker Tucker, of Woodville, for appellant.
The court erred in sustaining plaintiff's motion to exclude the testimony of witness H.P. Jones.
Perry v. State ex rel. Wood, Sheriff, 116 So. 430; Section 23 of the State Constitution; Moore v. State, 138 Miss. 116, 103 So. 483; Mapp v. State, 148 Miss. 739, 114 So. 825; Hamilton v. State, 149 Miss. 252, 115 So. 427; Hill v. State, No. 27262, 118 So. Advance Sheet No. 13, page 539.
D.C. Bramlette, for the state.
We respectfully submit that the only question on this second appeal is whether or not Sheriff Wood properly revealed the source of his information on which the search of the automobile was made, whether there was probable cause and whether the search was reasonable.
Law Notes for February, 1929, page 202; Silver v. State, 8 S.W.2d 144; Carroll v. U.S., 257 U.S. 132, 45 S.Ct. 280; Van Oster v. State of Kansas, 47 S.Ct. 133, page 134.
Appellant made no proper motion or showing for a continuance of the case or a recess until the attendance of Mrs. Brian could be procured, and appellant did not even have the record show what he expected to prove by Mrs. Brian.
Mooreman v. State, 95 So. 638; N.O. N.E.R. Co. v. Scarlet, 115 Miss. 285; Lamar v. State, 63 Miss. 265; Osborne v. State, 146 Miss. 718.
Argued orally by H. Clay Tucker, for appellant.
Moore, Chapman's predecessor, in office, seized an automobile in which the appellant was transporting intoxicating liquor, and proceeded in accordance with section 5 of chapter 189, Laws of 1918 (Hemingway's 1927 Code, section 2283), for the condemnation and sale of the automobile, and from a judgment condemning the automobile in accordance with the provisions of the statute the appellant has brought the case to this court.
The automobile was searched and the intoxicating liquor was discovered therein by the sheriff without a search warrant therefor on the claim by him of probable cause to believe that intoxicating liquor was being transported therein. The sheriff's claim is that he was informed, prior to the search, by Brian and Jones, who were credible persons, that intoxicating liquor was being transported in the automobile, on which information he made the search. The appellant was entitled to have the sheriff disclose the information on which he acted in making the search, as was held by this court on a former appeal herein. Perry v. State ex rel. Wood, 150 Miss. 293, 116 So. 430. The appellant introduced Jones, who denied having given such information to the sheriff prior to the search and seizure of the automobile and requested that the trial of the case be delayed until he could obtain the presence of Brian. The court declined to delay the trial and excluded the evidence of Jones, "for the reason the court thinks it incompetent and irrelevant; that the sheriff having testified as to who he got the information from is all that the statute requires." This evidence should not have been excluded, but should have been taken into consideration by the court in determining whether or not the sheriff in fact had information sufficient to constitute probable cause that intoxicating liquor was being transported in the automobile. This evidence was not offered before the court ruled on the competency of the evidence, but was offered by the appellant when the time came for him to introduce his evidence on the merits. It should have been offered before the court ruled on the competency of the sheriff's evidence as to what the search of the automobile disclosed ( Loftin v. State, 150 Miss. 228, 116 So. 435); but no objection was made in the court below on that ground. Whether the court should have passed the case in order to enable the appellant to obtain the evidence of Brian rested in the sound judicial discretion of the court, and the evidence does not disclose an abuse of that discretion.
Reversed and remanded.