Summary
reversing conviction of unlawful possession of intoxicating liquors, second offense, based on inconsistencies in the judgment of conviction for first offense
Summary of this case from Taylor v. StateOpinion
No. 39581.
February 7, 1955.
1. Intoxicating liquors — unlawful possession — evidence — conviction sustained.
Evidence sustained conviction for unlawful possession of intoxicating liquor.
2. Criminal law — lawful search — evidence — admissible.
Where sheriff, after driving up to premises with officers, went directly to front door and served search warrant upon person in possession of premises, while other officers went to back of building where they found whiskey, under facts of case, the whiskey was not subject to exclusion as having been found before service of the warrant. Sec. 2614, Code 1942.
3. Searches and seizures — service of warrant — on person in possession — where owner on premises.
It was not necessary for officer to search the entire premises for the owner and to ascertain first whether the owner is anywhere on the premises, before he can properly serve it upon person in possession of premises, and fact that defendant owner was in back yard at time sheriff served warrant on person in possession did not vitiate service. Sec. 2614, Code 1942.
4. Criminal law — right to public trial — not violated — waiver.
Where defendant during trial of case actively participated in and did not object to hearing, in Judge's chambers, of his motion to exclude the evidence and direct verdict for defendant, he waived any right to complain of such procedure as being in violation of his constitutional right to a public trial. Sec. 26, Constitution 1890.
5. Judges — motion for directed verdict — hearing in courtroom — not in Judge's chambers.
The better practice for hearing motion for directed verdict would be for the Trial Judge to retire the jury and remain in the courtroom to hear and pass upon the motion. Sec. 26, Constitution 1890.
6. Criminal law — trial — interest of public.
The public has a substantial interest in the public nature of a trial.
7. Criminal law — previous conviction — best evidence.
The best evidence of a previous conviction is the judgment of conviction.
8. Intoxicating liquors — beer — alcoholic content.
The possession of beer, not shown to be of an alcoholic content greater than four per centum by weight, is not a crime.
9. Criminal law — Justice of Peace docket — previous conviction — not shown.
Justice of Peace's docket, which disclosed only that accused had previously pleaded guilty to unlawful ownership of beer, did not disclose conviction of a crime, and could not be used as basis for sentencing defendant as a second offender in respect to unlawful possession of intoxicating liquors. Sec. 2613(b), Code 1942.
10. Criminal law — evidence — previous conviction — not shown — sentence for first offense.
Where evidence of previous conviction relied upon in trial of defendant as a second offender of unlawful possession of intoxicating liquor was insufficient for that purpose, judgment would be reversed, rather than remanded for sentence as for a first offense. Sec. 2613(b), Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the circuit court of Copiah County; T.P. BRADY, Judge.
W.M. Broome, Crystal Springs; Arrington Arrington, Hazlehurst, for appellant.
I. The Lower Court erred in not granting the peremptory instruction requested by the appellant in that the State's proof was wholly insufficient to support a conviction for a second offense. Conner v. State, 196 Miss. 335, 17 So.2d 527; Hall v. State, 199 Miss. 560, 24 So.2d 780; Hoyle v. State, 216 Miss. 330, 62 So.2d 380; May v. State, 209 Miss. 579, 47 So.2d 887; Millwood v. State, 190 Miss. 750, 1 So.2d 582; Morris v. State, 118 Miss. 605, 79 So. 811; Outlaw v. State, 208 Miss. 13, 43 So.2d 661; Powell v. State, 196 Miss. 331, 17 So.2d 527; Singleterry v. State (Miss.), 4 So.2d 234; Trivillion v. State, 195 Miss. 308, 15 So.2d 285; Sec. 2613, Code 1942.
II. The Lower Court erred in admitting in evidence against the appellant intoxicating liquor seized by virtue of an unlawful search and seizure inasmuch as (1) the warrant was not served upon him as required by law and (2) appellant's premises were searched and the intoxicants found before the warrant was served on anyone, in violation of appellant's constitutional and statutory rights.
III. Although search warrant was validly issued, it was not served upon appellant, although he was present and readily found. Brewer v. State, 142 Miss. 100, 107 So. 375; Buxton v. State, 205 Miss. 692, 39 So.2d 310; Harrell v. State, 140 Miss. 737, 106 So. 268; Strangi v. State, 134 Miss. 31, 98 So. 340; Taylor v. State, 134 Miss. 110, 98 So. 459; Sec. 2614, Code 1942.
IV. The evidence of the State fails to prove beyond a reasonable doubt that the search warrant was served on anyone before the intoxicating liquor was found; but, to the contrary, clearly indicates that the liquor was found and the warrant subsequently served on an employee of the appellant, and that evidence obtained before the officers made known their authority for conducting the search is inadmissible. Adams v. State, 202 Miss. 68, 30 So.2d 593; Burgess v. State, 217 Miss. 746, 65 So.2d 260; Sec. 2614, Code 1942.
V. The appellant was denied a public trial in open court as guaranteed by Sections 24 and 26 of the Mississippi Constitution of 1890; and for that reason, this cause should be reversed and remanded. Brooks v. State, 209 Miss. 150, 46 So.2d 94; Hollis v. State, 221 Miss. 677, 74 So.2d 745; Hunt v. State, 61 Miss. 577; In re Oliver (Mich.), 333 U.S. 257, 92 L.Ed. 682, 68 S.Ct. 499; Louis Werner Stave Co. v. Marden, Orth Hastings Co. (N.Y.), 280 Fed. 601; Miles v. Board of Suprs. Scott County (Miss.), 33 So.2d 810; People v. Harris, 50 N.Y.S.2d 745, 182 Misc. 787; Scott v. State, 70 Miss. 247, 11 So. 657; State v. Hensley, 75 Ohio St. 255, 79 N.E. 462; Suesemilch v. Suesemilch, 43 Ill. App. 573; Traver v. Godsey (Tex. Civ. App.), 82 S.W.2d 1031; Secs. 24, 26, Constitution 1890.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. The evidence offered by the State was sufficient to support a conviction for a second offense. Outlaw v. State, 208 Miss. 13, 43 So.2d 661; Vincent v. State, 200 Miss. 423, 27 So.2d 556; Sec. 2613, Code 1942.
II. The evidence obtained in the search of appellant's premises was properly admitted, as the proof shows the search warrant was legally served upon the person in possession. Burgess v. State, 217 Miss. 746, 65 So.2d 260; Sec. 2614, Code 1942.
III. In the absence of objection by appellant in the Lower Court, appellant cannot complain of Court's action in hearing motion to exclude and direct in chambers, no prejudice being shown nor proof that public was excluded therefrom. Beale v. State, 213 Miss. 476, 54 So.2d 921; Carter v. State, 100 Miss. 342, 56 So. 454; Ellis v. State, 65 Miss. 44, 3 So. 188; Hamburg v. State, 263 Miss. 565, 35 So.2d 324; Hollis v. State, 221 Miss. 677, 74 So.2d 747; Holmes v. State (Miss.), 56 So.2d 815; Lewis v. State, 85 Miss. 35, 37 So. 497; Wexler v. State, 167 Miss. 464, 142 So. 501; Sec. 2519, Code 1942.
Appellant, Hayden Brown, was convicted in the Circuit Court of Copiah County of the unlawful possession of intoxicating liquors, and was sentenced for a second offense. Miss. Code 1942, Sec. 2613 (b).
On September 26, 1953, Mayor J.A. Steen of Georgetown in Copiah County, Sheriff Stevens and Deputy Sheriff Bufkin obtained a search warrant to search the residence and surrounding premises of Brown. In the front of the house was a cafe, and in the rear were his living quarters. The three officers drove up to the place, and Sheriff Stevens went into the front door, the cafe part, to serve the search warrant. He served it upon a woman who was in charge of the cafe and premises. Steen and Bufkin proceeded around to the rear of the premises without going inside the building. It was about 9 o'clock at night, and from the darkness they saw Brown hand a can of beer to one of several men standing around a small car port at the back of the building. Steen walked over to a large tub nearby and removed from it a tarpaulin half covering it. The tub contained ice and beer. Next to it was a gallon jug of whiskey. When he saw the officers, Brown grabbed the jug and ran across his yard to the front of his place, and threw it on the other side of the street. At that time Steen caught Brown and arrested him. Steen testified that Sheriff Stevens "then came out of the back door," and that the officers thereupon went across the street and picked up the jug of whiskey which Brown had thrown.
(Hn 1) The record was ample to support the verdict and judgment of conviction of appellant for unlawful possession. (Hn 2) Appellant contends that the evidence shows that the whiskey was found by Steen and Bufkin and the search was made by them before Sheriff Stevens served the search warrant upon the woman in charge of the cafe, and that therefore the search was invalid under Burgess v. State, 217 Miss. 746, 65 So.2d 260 (1953). Although evidence gained by use of the search warrant was objected to by defendant at the trial for other reasons, this ground of objection was not made to the circuit court. Moreover, it has no merit. Stevens went directly in the front door after the officers drove up to the place and served the search warrant on the woman who operated the place and "who was in charge of the house." That is undisputed on this record. (Hn 3) Appellant also says that it was the obligation of Sheriff Stevens to search the premises to see if the owner, Brown, was present before he served the search warrant on anyone else. Code Section 2614 provides that a copy of the search warrant "shall be served on the owner or person in possession if such person be present or readily found." It is not necessary for an officer to search the entire premises for the owner and to ascertain first whether the owner is anywhere on the premises, before he can properly serve it upon a person in possession of the premises, as was the woman operating the business here. She was the person in possession of the premises and in the front of the building where business was being transacted. The fact that appellant might have been in the back yard, unknown to Sheriff Stevens, does not vitiate the service. It was made in accordance with Section 2614. (Hn 4) Defendant offered no evidence. At the close of the State's case, the court reporter's transcript shows that "in chambers" defendant's attorney made to the court a lengthy motion to exclude the State's evidence and to direct a verdict for defendant. The court overruled that motion. Appellant argues that because the court heard "in chambers" his motion for a directed verdict, he was denied his right under Mississippi Constitution, Sec. 26, to a "public trial by an impartial jury . . ."; that since this motion was heard and overruled in chambers his trial was not public; that this constitutional right is absolute and cannot be waived by a defendant; and that appellant does not have to show any prejudice to him in order for this action of the trial court to constitute reversible error. All of the evidence was presented to the court and jury in open court. Appellant complains only about the court hearing in chambers his motion for a directed verdict. Appellant in nowise objected to this procedure, and, in fact, actively participated therein by initiating his motion in chambers. Manifestly there was no prejudice to appellant. Since appellant actively participated in the hearing in chambers, we think that he waived any right to complain of that procedure. 14 Am. Jur., Criminal Law, Sec. 143; 23 C.J.S., Criminal Law, Sec. 963, p. 289; Anno., 156 A.L.R. 265, 294 (1945); Cf. Carter v. State, 100 Miss. 342, 345, 56 So. 454 (1911); Hollis v. State, 74 So.2d 747 (Miss. 1954). However, in other cases with different circumstances a hearing by the court in chambers might result in reversible error. (Hn 5) The better practice would be for the trial judge to retire the jury and for him to remain in the courtroom to hear and pass upon the motion. (Hn 6) The public has a substantial interest in the public nature of a trial.
(Hn 7) Despite the foregoing conclusions, the case must be reversed because the evidence was not sufficient to show a prior conviction in 1952 which would support the conviction and sentence of appellant for a second offense under Section 2613 (b). To support the charge of a prior conviction, the State offered as a witness a justice of the peace of Copiah County, who identified his docket. The State claims that this docket shows a conviction of appellant on July 19, 1952, for the possession of intoxicating liquor. The docket reflects that a search warrant was served on Brown and that the sheriff executed it by searching the premises and seizing 11 1/2 cases of beer and 1 1/2 pints of whiskey "in possession" of Brown. The return states "Allean Herron claimed possession of the whiskey." The docket shows that Brown was charged with "possessing intoxicating liquor." However, the judgment on the justice of the peace docket is as follows: "This cause coming on for hearing and both defendants pleading guilty as charged: to wit: Hayden Brown claimed he owned the beer Ellean claimed she owned the unlabeled whiskey they were fined $100.00 each and were to pay 1/2 of fine today: released on bond and are to pay the remainder within 30 days." The best evidence of a previous conviction is the judgment of conviction. Outlaw v. State, 208 Miss. 13, 43 So.2d 661 (1949); Vincent v. State, 200 Miss. 423, 27 So.2d 556 (1946).
(Hn 8) The judgment of the justice of the peace showed that Brown pleaded guilty only to owning the beer and that Allean pleaded guilty to owning the whiskey. It is true that the judgment states in general terms that both defendants pleaded guilty as charged, but it is then succeeded by the word "to wit," following which it is stated that Brown pleaded guilty only to possession of the beer. The word "to wit" means "to call attention to a more particular specification of what has preceded." In other words, the judgment shows that, when these parties were brought before the justice of the peace, Brown said that the beer was his and Allean said that the whiskey was hers. The justice, in writing up his judgment, shows affirmatively that appellant pleaded guilty only to possession of beer. But the possession of beer, not shown to be of an alcoholic content greater than four per centum by weight, is not a crime. Hoyle v. State, 216 Miss. 330, 62 So.2d 380 (1953). (Hn 9) Hence the 1952 judgment is not sufficient to show a prior conviction of the unlawful possession of intoxicating liquor.
(Hn 10) A possible alternative to a reversal would be that we could affirm appellant's conviction for a first offense, and remand the case for proper sentence. However, this procedure in a case of this type has been rejected in several instances. The reasons are well set forth in Millwood v. State, 190 Miss. 750, 758, 1 So.2d 582 (1941), in the concurring opinion of Judge Alexander, as follows: ". . . it is apparent that if the defendant is considered as having been convicted of a constituent misdemeanor it will be seen that he was convicted upon testimony which was inadmissible and highly prejudicial. Two former convictions for the sale of intoxicating liquor were proved by the state. Regardless of how appropriate such evidence would be in a proper prosecution under paragraph (c), it was so improper and prejudicial under a prosecution as for a first offense that this Court ought to take notice thereof." To the same effect are Singletary v. State, 4 So.2d 234 (Miss. 1941), and Trivillion v. State, 195 Miss. 308, 15 So.2d 285 (1943), which is similar to the present case.
Reversed and remanded.
McGehee, C.J., and Roberds, Lee and Holmes, JJ., concur.