Opinion
No. 29923.
November 14, 1932.
1. CRIMINAL LAW.
Error in admission of evidence as to what unlawful search of defendant's person disclosed held cured, where defendant testified and admitted facts disclosed.
2. CRIMINAL LAW.
Conduct of defendants in producing goods taken from building burglarized held admissible, notwithstanding confessions which brought on conduct were inadmissible because extracted by third-degree methods.
3. CRIMINAL LAW.
Competency of evidence, not objected to when offered, could not be determined on appeal.
4. WITNESSES.
Where confessions extracted from defendants by third degree methods had been excluded, permitting district attorney to cross-examine defendants relative to confessions held reversible error.
APPEAL from Circuit Court of Bolivar County.
C.H. Crump, of Cleveland, for appellants.
We have no statute which authorizes the issuance of a warrant for the search of the person of an individual — from which it necessarily follows that the warrant under which this search was made was void, and the evidence procured thereby was inadmissible.
Duckworth v. Taylorsville, 108 So. 666, 142 Miss. 440; Conley v. State, 106 So. 827.
If the state be permitted to introduce the finding of the goods as a result of a confession, it would be folly to reject the confession. And parties who take the law in their own hands and wring confessions from suspected criminals would always carry such cruel treatment of the prisoners to the extent, after the confession (which they knew would be inadmissible) that they would always get a pointing out of the stuff, even if the confession could not be used, and would do indirectly what the law would not permit them to do directly.
Williams v. State, 16 So. 296.
The cross-examination by the state's attorney was inadmissible, as the court had already held that the confession, the conversation and all such was extorted from defendants.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The search of one's person is not permitted except as incident to an arrest.
It is not clear from the evidence whether the person of appellant was searched before or after the arrest; in fact it is not clear from the evidence that he was then arrested at all. If he was not then under arrest, the officers had no right to search his person, and the evidence thereby obtained was inadmissible; but any error that may have been committed in the admission of this evidence cannot be here complained of by the appellant for he testified in his own behalf and admitted that he had the bottle of whiskey then in his possession.
Goodman v. State, 130 So. 285; Ross v. State, 131 So. 367; Clayton v. State, 131 So. 648; Sanders v. State, 130 So. 112; Prine v. State, 130 So. 687.
This court early laid down the proposition that the fact that property alleged to have been stolen and was found in consequence of information procured from the accused, but by improper means, is not admissible in evidence against him, unless the property so found be identified as the property stolen.
Belote v. State, 36 Miss. 96.
Whatever diversity of opinion may exist upon the question, whether confessions improperly obtained, and which are verified and corroborated by facts and circumstances afterwards found to be in accordance with the statement of facts made in the confession, are admissible in evidence on account of the corroboration, there can be no doubt but that acts of the accused done in consequence of the inadmissible confession, and tending to show his guilt should be received in evidence.
Warickshall's case, 1 Leach 298; Mosey's case, Ib. 301; 2 Russ on Cr. (7 Amer. Edit.) 863, 1 Phill. Evid. 116 (4 Amer. Edit.).
It is not the confession of the party that is received in evidence against him, but the facts which are brought to light by his acts, and in consequence of his confessions.
It is competent to show that the witness was directed by the accused where to find the goods, and that they were found there accordingly.
Garrard v. State, 50 Miss. 147; Whitley v. State, 78 Miss. 255, 28 So. 852, 53 L.R.A. 402.
The general rule is undoubtedly well settled, that the possession by a part of stolen goods, shortly after their loss by the owner, is presumptive evidence of guilt, which, however, may be explained; and if the party in whose possession they are found, fails satisfactorily to account for his possession, the presumption of guilt, arising from the recent loss by taking and the possession, will stand and warrant a conviction. What will be sufficient to account for the possession, or to remove the presumption which may arise therefrom, will depend much upon the length of time which intervened between the loss by the owner and the discovery of possession in the party charged, the nature and character of the goods, and all the circumstances of the case; and this, for the most part, is to be determined by the jury.
Belote v. State, 36 Miss. 96, 72 Am. Dec. 163.
It is of the utmost importance in the administration of justice that the right to cross-examination be preserved unimpaired.
In all matters the privilege of counsel rightfully has broad latitude, and, to make it fully effective toward the purposes for which the law allows and favors it, the privilege should not be interfered with or hampered or restricted by the trial judge, except in clear cases of irrelevancy, trespass beyond admissible ground, or extremes of continual aimless, repetition.
Prewitt v. State, 126 So. 824.
This is an appeal from a conviction of burglary. The burglary charged is that of a building owned by Smith Wiggins, Inc., with intent to steal property therein, described as two automobile tires, one rifle, and two dollars in cash. Evidence was disclosed that the building was entered in the nighttime, by the breaking of a plate glass door, and, when the burglary was discovered the next morning, two automobile tires and a rifle which were in the building the night before were missing. The cash register also had been broken into, and the money therein the night before was missing. This money consisted of a five dollar bill, three or four one dollar bills, and some silver. The five dollar bill was torn almost in half when placed in the cash register.
The appellants were suspected of the burglary, and a warrant for the search of the person of Percy Smith was sued out. The officer having this warrant, and who was accompanied by others, searched Percy and found a torn five dollar bill and four one dollar bills on his person. They then caused Percy to enter an automobile they were driving, picked up the other defendant, and took them "for a ride" into the woods, where they extracted from them, by third degree methods of extreme brutality, a confession that they committed the burglary, but which the court, on an examination as to its competency, out of the presence of the jury, declined to permit to be introduced in evidence. After this confession was extracted, the appellants told the officers that the tires and rifle were hidden under a barn, and, on being taken thereto by the officers, one certainly, and probably both of them, went under the barn and brought out the tires and rifle. The five dollar bill was identified by one of the clerks at Smith Wiggins as being the one that was in the cash register, the rifle as also being the one that was in the building, and the automobile tires as being of like kind.
The evidence as to what the search of Percy's person disclosed was objected to, for the reason that it was unlawful; no warrant therefor being authorized by law. It does not clearly appear from the evidence whether this search was made before or after Percy's arrest, but, as the facts then within the knowledge of the officer making the arrest other than what was disclosed by the search would not have justified the arrest, we will assume, for the purpose of the argument, that the search was unlawful. Any error in its admission was cured, for Percy himself testified and admitted having the money. The evidence regarding the information given the officers as to the whereabouts of the tires and rifle was also objected to, for the reason that it was given as a part and continuation of the confession unlawfully extracted from the appellants. There is no merit in this contention. The confession itself was inadmissible, but the acts and conduct of the appellants in producing the tires and rifle were admissible. Belote v. State, 36 Miss. 96, 72 Am. Dec. 163; Garrard v. State, 50 Miss. 147. In Whitley v. State, 78 Miss. 255, 28 So. 852, 53 L.R.A. 402, evidence of this character was held to be inadmissible; but the court there pointed out that the article there found, pursuant to information given by the appellant as to its whereabouts, was not identified as being the property taken from the person murdered.
Part of the information given these officers, and permitted to go to the jury, was that they had put the tires and rifle under the barn. We are not called on, however, to pass on its competency, for the reason that no objection was made to it when offered.
The appellants themselves testified in their own behalf, and the district attorney, over their objection, was permitted to cross-examine them as to statements made by them to the officers, indicating that they had confessed to committing the burglary. The making of these statements was denied by each of the appellants; but it is clear from the evidence that the jury could not but have understood to what the district attorney referred, that is, to statements indicating guilt which the district attorney was advised had been made by the appellants to the officers at the time the information as to the whereabout of the property was given them. The jury must have assumed, as they had the right to, that the district attorney would not have asked the questions unless he was in possession of information indicating that the confessions therein referred to had been made. The confession having been excluded, the cross-examination of the appellants relative thereto should not have been permitted. The court below did sustain objections to some of these questions, but unfortunately did not sustain objections to all of them. The theory on which the court permitted the examination was that it was within the latitude allowed for cross-examination. The evidence here rests solely on the circumstance that the appellants were in possession of property recently obtained by some one by means of the burglary; and the character of the cross-examination here under consideration no doubt added very greatly to the confidence of the jury in returning its verdict of guilt, without which it might not have otherwise convicted.
Reversed and remanded.