Opinion
No. 32690.
May 3, 1937.
1. CRIMINAL LAW. Searches and seizures.
Where, at request of officers acting under valid search warrant but not under warrant for arrest, shop manager voluntarily gave them keys to locker in shop, liquor found in locker held competent as evidence in prosecution of shop manager for unlawful possession of liquor, as against contention that it was obtained by unlawful search, since officers could have broken locker open and shop manager's conduct amounted to waiver of objections.
2. CRIMINAL LAW.
In prosecution for unlawful possession of liquor, error in giving instruction held not prejudicial, where there was no dispute as to defendant's guilt and honest jury could have returned no other verdict.
APPEAL from the circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
Jaap Higgins, of Jackson, for appellant.
We take it as undisputed that a warrant to search a person is invalid, and that a search made of a person at a time when no crime has been committed in the officers' presence, or when he has no warrant for the arrest of a person, or has no creditable information that the person searched has committed a felony, is unlawful, and that evidence obtained thereby is inadmissible.
Comby v. State, 141 Miss. 541, 106 So. 827; Duckworth v. Taylorsville, 142 Miss. 440, 107 So. 666.
Search of person before intoxicating liquor is found and lawful arrest made by officer based thereon is unauthorized.
Robinson v. State, 143 Miss. 247, 108 So. 903; Burnside v. State, 144 Miss. 405, 110 So. 121.
It is respectfully submitted that the demand of the officers made on the appellant that he deliver to them the keys to the locker was an unlawful search of his person just as much as if the officer had run his hand into his pocket and taken the keys therefrom.
In the case of Goodman v. State, 130 So. 285, 158 Miss. 269, which seems to have confused the learned circuit judge, the defendant admitted the possession of the liquor, not in an extrajudicial, but in a judicial confession, and testified that his possession was merely transitory, he having taken it for the purpose of taking a drink, and that when he saw the officers he concealed it in an inside pocket. In the case at bar there is no judicial confession, the defendant not having taken the stand. There is alleged to have been an extra-judicial confession, which, manifestly, would not be admissible until the corpus delicti of the crime had been proven aliunde the confession, and by competent testimony.
Defendant's confession, without proof of corpus delicti, not sufficient to sustain conviction of having possession of liquor.
Morton v. State, 136 Miss. 284, 101 So. 379; Williams v. State, 129 Miss. 469, 92 So. 584.
John G. Burkett, of Jackson, for appellee.
The search warrant covered the room in which the whiskey was found, to-wit, the boiler room of the pressing shop. It was a part of said pressing shop and a part of the Royal Hotel Building.
There is no merit in the contention of appellant that an unlawful search was made of his person when he turned the keys to the locker over to the officers. It is undisputed that this action was entirely voluntary on his part, wholly without protest, that no hand was laid upon him, and further that he freely and voluntarily admitted the ownership of the whiskey, and furnished the right key to the locker.
Goodman v. State, 158 Miss. 269, 130 So. 285.
William Stewart, appellant, was convicted of unlawfully having whisky in his possession in the city court; appealed to the county court where, by a jury, he was again convicted; and then appealed to the circuit court, where his conviction was affirmed.
His conviction rests upon the evidence of two city policemen, Byrd and Rogers, who made a search by an affidavit and search warrant, the validity of which was not challenged. The warrant authorized the search of a pressing shop in the rear of the Royal Hotel, 123 East Capital street in the city of Jackson. The policemen proceeded to this place; found Stewart there in charge, and served a copy of the warrant on him. In the boiler room, shown to be connected with and a part of the pressing shop, the officers observed a locker and asked Stewart if he had the keys thereto, to which he replied, "I have them," and Byrd then asked Stewart for the keys. Both officers said no demand was made upon Stewart for the keys. Thereupon, the officers opened the locker and found therein twenty-four one-half pint bottles of whisky, and Stewart admitted that the whisky belonged to him. One officer said he smelled the contents of one of the bottles and that it was whisky.
Appellant offered no evidence, and the testimony of the officers is uncontradicted. The appellant was not arrested until after the whisky was found in the locker. The officers had no warrant for his arrest, and admitted that he had not, so far as they knew, committed a crime in their presence.
The precise contention of appellant is that, notwithstanding the policemen had a valid search warrant, the evidence was obtained by reason of an unlawful search of the appellant's person, because the keys were demanded of him by Byrd, and that he (appellant) was coerced into delivering the keys to the officer. Appellant relies upon the following cases: Comby v. State, 141 Miss. 561, 106 So. 827; Duckworth v. Taylorsville, 142 Miss. 440, 107 So. 666; Robinson v. State, 143 Miss. 247, 108 So. 903, and Burnside v. State, 144 Miss. 405, 110 So. 121, in which latter case the accused had a bottle of intoxicating liquor concealed on her person, and the officers who were searching the premises under a search warrant demanded that she deliver the whisky she had under her dress. She left the house and started away and was followed by the officer, who demanded of her that she give to him the whisky she had concealed. The court held that, under these circumstances, the evidence was obtained by a search of the person and by virtue of a command of an officer, and the act of the accused was not free and voluntary.
We have no such circumstances in the case at bar. In the first place, keys do not constitute incriminating evidence, and the keys here were but the means by which the locker could be peacefully and quietly opened in order that the search might be completed. The officers distinctly repudiated the idea that they demanded or coerced the appellant in any manner into giving them the keys, and the search seems to have been dignified and decorous, and there is nothing in this record to indicate that the accused did not freely and voluntarily turn the keys over to the officer. Turning a key over to an officer which will unlock a locker is a very different thing from turning over a contraband article such as whisky.
Under these named authorities, including the Burnside Case which is strongly relied upon by the appellant, there was no unlawful search in the case at bar, nor was there any search of the appellant's person. The keys were not an indispensable means of completing the search. The locker could have been broken open by the officers and the incriminating evidence discovered. The evidence of the officers was competent.
There was a complete waiver of any claim to an unlawful search under the facts and circumstances here detailed. Compare the case of Massei v. United States, 295 F. 683, decided by the Fourth Circuit Court of Appeals. A writ of error was denied in this case by the United States Supreme Court. 264 U.S. 592, 44 S.Ct. 404, 68 L.Ed. 865.
Conceding, for the purpose of argument, that there was error in the two instructions complained of, we do not think the appellant was prejudiced thereby, for the reason that there is no dispute, in this record, as to the guilt of the appellant, and an honest jury could not have returned any other verdict.
Affirmed.