Opinion
No. 30285.
February 6, 1933.
1. ARREST.
For crime of driving vehicle with license tag belonging to another to have been committed in officer's presence, it must appear license tag belonged to another vehicle (Code 1930, sections 5619, 5621).
2. ARREST. Criminal law.
Arrest for driving vehicle with license tag belonging to another vehicle, based on ground officer was advised tag belonged to another, did not render subsequent search of automobile without warrant lawful, hence liquor found was inadmissible in liquor prosecution (Code 1930, sections 5619, 5621).
APPEAL from the Circuit Court of Forrest County.
Cephus Anderson, of Hattiesburg, for appellant.
The supreme court has held that when an officer starts a pursuit for the purpose of arresting a party then the arrest is begun at the time of the pursuit, and if the pursuit was illegal in the beginning, then any subsequent findings are not admissible in the trial of a defendant when thus obtained.
Ford v. City of Jackson, 121 So. 798, re-affirmed in Smith v. State, 133 So. 240.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The driving of a motor vehicle over the public streets and roads of the state of Mississippi without a tag, or with a tag which was issued for another motor vehicle, is a continuing offense and continues so long as such motor vehicle is so operated. Therefore, when the officers came upon the automobile, being driven by appellant under the circumstances shown by the record, appellant was committing a misdemeanor in the presence of the officers, to-wit, driving an automobile with a tag which had been issued for another motor vehicle.
Appellant admits the right to arrest an offender when committing a misdemeanor in the presence of arresting officer, and therefore, it appears to me that his argument falls of its own weight and that the arrest and consequent search was valid.
This is an appeal from a conviction for having intoxicating liquor in possession.
The appellant was driving an automobile when he was arrested by a police officer, the automobile was searched, and liquor was found therein. The search was made without a warrant, and the evidence obtained thereby was admitted over the appellant's objection.
The right of the officer to search the automobile was based, by him, on the fact that he had arrested the appellant for a crime, other than having liquor in possession, then being committed in his (the officer's) presence.
The evidence in support thereof is that the officer had been given a list of automobile license tags which, he was informed, had been stolen, and that he was looking out therefor. The number of the tag on the automobile which the appellant was driving corresponded with the number of one of the tags on the list given the officer. On seeing this tag, the officer pursued and arrested the appellant for the crime defined by section 5619, Code 1930, which provides that: "And if any person shall knowingly drive a motor vehicle with a tag or number attached thereto which belongs to another vehicle, or which tag shall fail to contain the same license number as originally issued or substituted, such person shall be subject to the same penalty imposed for driving a motor vehicle without a tag or license number."
The penalty referred to therein is a fine of not less than ten dollars nor more than one hundred dollars or imprisonment in the county jail, or both. Section 5621, Code 1930.
If this crime was being committed in the officer's presence, so as to be obvious to him by sight, the arrest was lawful.
One fact, probably among others, must appear before any crime can be said to have been committed in the officer's presence, which is that the license tag "belongs to another vehicle." This fact is not disclosed by the evidence; it being simply that the officer had been advised that the license tag belonged to another and had been stolen. The issuance of the tag for use on another vehicle should have been proven.
The evidence disclosed by the search of the automobile should have been excluded.
Reversed and remanded.