Opinion
No. 28967.
December 8, 1930.
1. CRIMINAL LAW. In larceny prosecution, permitting arresting officer to testify over objection concerning confession, without showing statement was freely and voluntarily made, held error.
Examination of arresting officer disclosed that officer merely heard a small part of conversation while defendant was being questioned by another. He did not know under what circumstances the confession was made, and there was no showing that alleged confession was freely and voluntarily made.
2. LARCENY.
State, to sustain charge of larceny, must prove personal property was stolen.
3. CRIMINAL LAW. Arrest of defendants, charged with larceny, for trespass not committed in officer's presence, held unlawful, and therefore evidence obtained by search of automobile was inadmissible in larceny prosecution ( Hemingway's Code 1927, section 1265).
Officer, without knowledge or information that defendants had possession of stolen property or that they had committed a felony of any kind, and without a warrant, arrested defendants for a trespass which was a misdemeanor not committed in officer's presence.
APPEAL from circuit court of George county. HON.W.A. WHITE, Judge.
Luther W. Maples, of Gulfport, for appellant.
It is true, from the state's testimony, that the officer who found the calf was not looking for any kind of evidence against the appellants; that it was mere curiosity, which to our mind takes the evidence further into the field of illegally obtained evidence than it would have been had the officer been looking for the said calf and had searched the said automobile with a search warrant or in some lawful manner, which we contend was not done, and in support of our contention we respectfully call the attention of the court to that long line of authorities that are universally supported by the leading courts of this country and by all of the better reasoned cases. These cases have been ably correlated by Judge V.A. Griffith in the case of Benard v. The State, 124 So. 479. We respectfully call the particular attention of the court to the case of Tucker v. The State, 90 So. 845; 24 A.L.R. 1377; Taylor v. State, 98 So. 459.
The universal opinion of the courts is to the effect that evidence obtained even where a legal arrest is made must be in pursuance of a particular class of evidence. The officer must know what he is looking for. He must have information and belief that the evidence sought can be found by a search of the property, neither of which is true in the case at bar.
Hemingway's Code of 1927, par. 2238, Constitution 1890, par. 23; Cofer v. State, 118 So. 613, 152 Miss. 761.
What constitutes a legal arrest is answered by the Constitution of Mississippi, section 23 and the Code of 1930, section 1227.
Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590, 1 A.L.R. 568, Nov., 1930, No. Mississippi Law Journal, pages 90-91.
When the arrest of a person is unlawful the search of the person is also, unlawful.
Henderson v. United States, 12 F.2d 528, 51 A.L.R. 420 and note; Note 32, A.L.R. 702; Allen v. State, 197 N.W. 808, 39 A.L.R. 782; Butler v. State, 101 So. 193; 1 R.C.L., Per. Sup.,
Evidence discovered by search after unlawful arrest cannot be used against the accused.
Hughes v. State, 238 S.W. 588, 20 A.L.R. 639.
Broom Gober, of Jackson, for appellants.
The theory of the defense was that the arrest was unlawful and unauthorized and therefore the search was unlawful.
A witness testified that one Gabrich questioned Tootle and Tootle confessed to stealing the calf. Gabrich himself does not so testify and Tootle denies it. On cross-examination the witness says on page 43: "I did not pay a lot of attention to it," and admits that he just overheard a part of the conversation. Now since Tootle denies making any such confession and Gabrich does not dispute it, I think it cannot be said that any confession was made and if it was made this proof was offered prior to proof of the corpus delicti; and in all events his confession would not be admissible against Fletcher and his codefendant.
The proof that the yearling was bought stands uncontroverted, and the law is that uncontroverted facts cannot be arbitrarily disregarded by a jury, but must be accepted as true.
Stewart v. Coleman Co., 81 So. 653; New Orleans, etc. v. Harrison, 105 Miss. 18, 61 So. 655.
W.A. Shipman, Assistant Attorney-General, for the state.
The rule of law applicable to the instant case is very clearly and fully stated in the case of Bird v. State, 154 Miss. 493, 122 So. 539.
It is well settled that an officer may make an arrest for a misdemeanor committed in his presence or for a felony that has been committed where he has probable cause to believe that the person arrested has committed the felony, and as an incident of such arrest may search the person of the person arrested to see that he is not armed and to take from him instruments that might facilitate an escape; may also take from the person instruments of evidence that may tend to establish a commission of the crime for which he is arrested and things so taken from the person under such circumstances may be admitted in evidence when they tend to establish the crime with which he is charged.
Toliver v. State, 133 Miss. 789, 98 So. 342; Moore v. State, 138 Miss. 116, 103 So. 438; Brown v. State, 149 Miss. 219, 115 So. 436.
Appellants were indicted, tried, and convicted on a charge of grand larceny — the stealing of a calf, the property of A.P. Mixon, in George county — and sentenced to serve a term of two years in the state penitentiary, and appeal here.
We shall not detail the facts, but only such as are necessary to understand the points decided.
1. The court permitted the arresting officer, Lowd, to testify as to the confession of the appellant Tootle without showing that the statement was freely and voluntarily made.
After considerable evidence had been heard as to whether or not the arrest was lawful, this occurs in the record:
"Q. Were you present when anybody questioned them? A. Gabrich questioned Tootle.
"Q. What did Tootle say about this yearling? A. Tootle owned up to it.
"Q. What did he say? A. He said they stole the calf up here."
Then follows the cross-examination and redirect-examination of the district attorney, and this is quoted literally:
"BY THE COURT: Q. What did you say that Tootle said about this calf? A. He acknowledged to taking the calf — to stealing the calf.
"Q. Just what did he say? A. I did not pay a lot of attention to it. Mr. Gabrich was questioning him, and he walked in there and I did not stay in there long.
"Q. He did not tell you who he got it from? A. No, sir. I just overheard the conversation, and I overheard that much of it."
In a recross-examination it developed that the witness did not know what was said to the defendant by Gabrich or what was said by Tootle, the defendant, before or after he heard this fragment of a conversation. Thereupon the appellants moved to exclude this statement, because the witness did not know under what condition the confession was made, nor could he give the substance of same or the language used. The court overruled the motion.
The evidence admitted by the court, over the objection of the appellants, was damaging in the extreme. There is no showing as to whether or not this statement was freely and voluntarily made; and it is unnecessary to cite authorities to show that, when such testimony is objected to, the court should conduct an examination to astain whether or not the confession was freely and voluntarily made by the accused; and, if not, it should be excluded.
2. Without this confession in the record, there was no evidence that the calf was stolen, the only evidence on that point being that, after the officers found the calf in the back of the defendants' car, Mr. Mixon subsequently claimed the calf, a neighbor testified that the calf belonged to Mr. Mixon, and the wife of Mr. Mixon, he having died previous to the trial of this case, testified that she turned the calf out to range one evening, that it did not return the following morning, and that the next time she saw the calf was when her husband brought it with him on a return trip from Biloxi, Mississippi. It is not shown whether or not Mixon made disposition of the calf.
The state must prove that the personal property was stolen to sustain a charge of larceny.
3. It is claimed that the evidence of the officer Lowd as to the finding of the calf concealed in the back of the car is incompetent, because the arrest of the defendants was made without a warrant, and therefore unlawful.
It is sufficient to say that this record does not disclose that the officer had any suspicion or information that these appellants had possession of stolen property, or that they had committed a felony of any kind. About three or four o'clock in the morning the officer was called by Mr. Orr, because the car of these two appellants was parked on the street near his place of business, a garage, and he thought they were acting suspiciously. Orr told the officer that one of the appellants had walked on his property and had moved a very heavy automobile transmission a few feet on an uninclosed lot of his connected with his premises, adjacent to the street, but that he did not remove it from the lot. The appellants had driven down the street away from the immediate vicinity of Orr's premises when the officer arrested them. The witness stated that he arrested the appellant Tootle for a trespass, and the record shows that an affidavit was made against them for a misdemeanor, because they were tried in the Biloxi city court and appealed therefrom.
In this state of the case, the arrest for trespass was unlawful, being made without a warrant. It may be even questioned whether the evidence shows that a trespass had been committed. However, if committed, the officer did not see it, the misdemeanor was not committed in his presence. The only authority for an arrest without a warrant is found in section 1265, Hemingway's Code 1927, section 1447, Code 1906, "an officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; . . . or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it."
In Bird v. State, 154 Miss. 493, 122 So. 539, this court held: "It is well settled that an officer may make an arrest for a misdemeanor committed in his presence or for a felony that has been committed where he has probable cause to believe that the person arrested has committed the felony, and as an incident of such arrest may search the person of the person arrested to see that he is not armed and to take from him instruments that might facilitate an escape, and may also take from the person instruments of evidence that may tend to establish a commission of the crime for which he is arrested, and things so taken from the person under such circumstances may be admitted in evidence when they tend to establish the crime with which he is charged."
In Toliver v. State, 133 Miss. 789, 98 So. 342, the court held that, upon a proper warrant, the search of an automobile might be made by the officer arresting the owner of the automobile, and that evidence tending to show guilt of the crime of having possession of intoxicating liquor found therein, was competent.
In Moore v. State, 138 Miss. 116, 103 So. 483, 484, this court said: "An arrest at common law has always been permissible without a warrant if made on probable cause therefor. For a misdemeanor when committed in the presence of the person making the arrest, and for a felony, though not committed in the presence of the person making the arrest on probable cause therefor." In the instant case, the officer himself said he made the arrest for a trespass without a warrant, and that the trespass was not committed in his presence.
At the time of the arrest, the appellant had driven away from Orr's premises, and had not taken any property therefrom. On this record, the evidence was incompetent, and the court below should have excluded it. For the errors indicated herein, this case will be reversed and remanded.
Reversed and remanded.