Summary
In Lancaster v. State, 188 Miss. 374, 195 So. 320 (1940), the officer returned to the home of defendant the next day, after having incarcerated defendant in jail, and searched for an axe.
Summary of this case from May v. StateOpinion
No. 33954.
April 8, 1940.
1. SEARCHES AND SEIZURES.
Where sheriff's affidavit and search warrant both used the word "suspects" instead of language of statute "has reason to believe and does believe," search of defendant's premises for instrument with which decedent was killed was illegal (Code 1930, sec. 1357(7)).
2. CRIMINAL LAW.
Where sheriff's search of defendant's premises for instrument with which decedent was killed was illegal because of insufficiency of affidavit and search warrant, the trial court in murder prosecution properly ruled out sheriff's evidence on defendant's objection (Code 1930, sec. 1357(7)).
3. SEARCHES AND SEIZURES.
That defendant neither consented nor objected to search of premises for instrument with which decedent was killed did not constitute a waiver of a legal search warrant.
4. CRIMINAL LAW.
Where sheriff's search of premises for instrument with which decedent was killed was illegal because of defect in affidavit and search warrant, neighbor's testimony that she stood on her premises and saw search made by sheriff and axe drawn out of well was inadmissible (Code 1930, sec. 1357(7)).
APPEAL from circuit court, Lafayette county; HON. T.H. McELROY, J.
J.W. Price, of Batesville, and J.W.T. Falkner, of Oxford, for appellant.
The Court erred in admitting the testimony of Miss Mattie Moore with reference to the taking of an axe from the well at the home of the defendant for the reason that such evidence was obtained by virtue of an unauthorized and unlawful search of the home and premises of the defendant by the sheriff of Lafayette County, acting under a void search warrant based on a void affidavit.
Hampton v. State, 132 Miss. 154, 96 So. 166; Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377.
The court erred in admitting the testimony of the witnesses, Mrs. Davis Fuller, Mrs. Shirley Patton, Miss Juanita Faust, and Miss Reber Jackson, with reference to a conversation with the defendant regarding well at the home of the defendant.
C.A. Bratton, of Oxford, for appellee.
The appellee respectively submits that the affidavit and search warrant are valid.
Sec. 23, Code of 1930.
The appellee respectively submits that should they be in error as to the validity of the affidavit and search warrant, then notwithstanding the invalidity of the affidavit and search warrant the evidence offered by the sheriff was competent.
Pringle v. State, 108 Miss. 802; Magee v. State, 92 Miss. 865; 4 Wigmore on Evidence (2 Ed.), Sec. 2183; Wigmore on Evidence, 1934 Supplement, Sec. 2183.
Appellee respectively submits that should they be in error on both the above propositions, nevertheless the evidence is competent for the reason that the defendant disclaimed ownership of the property.
Cornelius, Search and Seizure (2 Ed.), p. 81, Sec. 28; Moy Wing Sun v. Prentiss, 234 Fed. 24.
Appellee respectively submits that should they be in error as to all three of the above propositions, nevertheless the evidence was admissible for the reason that permission was given by the appellant to R.C. Jones, the sheriff, to make such investigation as he desired to make of the premises, on the afternoon of the homicide, which permission and consent was never revoked.
Faulk v. State, 127 Miss. 894.
Appellee respectfully submits that the evidence of Miss Mattie Moore as to what she saw from her own house (therefore not a trespasser) is competent.
Hampton v. State, 132 Miss. 154; Sec. 23 of the Const.
W.D. Conn, Jr., Assistant Attorney-General, for the appellee.
The Court did allow a Miss Moore to testify that she was standing at her back door and saw the officers come out of the well with the axe, which they brought to her home where it was marked for future identification. We understand that the court admitted her testimony on the theory that she was a private individual (as distinguished from an officer of the law), was not a trespasser, and that, therefore, she could testify as to what she saw.
We are inclined to agree with counsel for appellant that this testimony was no more competent than was the testimony of the officers. Stated differently, if her testimony was competent, then the testimony of the officers fell in the same category. We think, however, that the court erred in holding the testimony of the officers to be incompetent. In stating our views on the subject we realize that we may be treading upon highly controversial grounds. Nevertheless, we believe that this court should hold that the evidence of the officers who went down into the well and found the axe, under all the circumstances reflected by this record, was competent.
Warren v. State, 174 Miss. 63, 164 So. 234.
Under our constitution a search warrant cannot issue except on probable cause, and it must specifically describe the place to be searched and the person or thing to be seized. If it were a matter of investigation, we can readily understood how a proper description of the place to be searched could be incorporated into a search warrant, but we are at a loss to understand how the thing to be searched for and seized could be set up and described in the warrant, because if that were known there would probably be no reason to search the premises.
Agnello v. U.S., 269 U.S. 20, 70 L.Ed. 145, 51 A.L.R. 409; Millette v. State, 67 Miss. 172, 148 So. 788.
When without any element of trespass being involved, it is reasonably apparent that an offense has been committed, particularly when involving the loss of human life, the interest of the public becomes and is paramount to any asserted private right under the Constitution (so far as the investigation of the premises where the offense was or clearly appears to have been committed). If one right must yield, it is the inferior and not the paramount one. The private right must yield to the collective right of the public or society at large to investigate or determine the character of the homicide, and if a felonious one, then to apprehend and punish him who is responsible therefore. This must necessarily be so if the power and duty of the sovereign to maintain peace and protect the security of persons and property is perpetuated. The constitution protects only against unreasonable searches and seizures.
McCamman v. Chaplain, 136 Va. 1, 116 S.E. 495; Keith v. State (Okla.), 235 P. 631; Best v. State (Okla.), 240 P. 159; People v. Marvin, 358 Ill. 426, 193 N.E. 202; 353 Ill. 64, 186 N.E. 531; People v. Milone, 195 N.Y.S. 488, 119 Misc. Rep. 22; People v. DeFore, 242 N.Y. 13, 150 N.E. 585.
We think that there should be a middle ground adopted by the court which should amply protect Constitutional rights of individuals, as well as the recognized rights of society at large. We do not think that evidence should be admissible in all cases regardless of the means by which it is secured, nor do we think that the perpetrator of a felony, particularly a major felony, should be allowed to go free and unwhipped of justice by taking refuge behind the constitutional prohibition against unreasonable searches and seizures and we here reiterate that where, without a trespass, it is evident that a felony has been committed, the asserted right of the individual, under the search and seizure clauses of our constitution, should yield to the paramount interest of society, and we submit that this court should hold that where this condition or situation be found to exist the officers of the law should be entitled to investigate and inspect the premises for the purpose of finding out how the crime was committed, what the motive was, and to search for clues and circumstances which would point to the perpetrator of such offense. The adoption of such a rule would in no wise infringe against the search and seizure provisions of our constitution when viewed in the light of the circumstances and conditions which caused the adoption of same into our fundamental law. What we have said hereinabove will in no wise conflict with the holding of this court in Cofer v. State, 158 Miss. 493, 130 So. 511.
Wigmore on Evidence (2 Ed.), Sec. 2184, and 1934 Supplement, Sec. 2184.
Argued orally by J.W. Price and J.W.T. Falkner, for appellant, and by C.A. Bratton and W.D. Conn, Jr., for appellee.
Appellant was indicted and convicted in the Circuit Court of Lafayette County of the murder of his wife, and his punishment fixed at life imprisonment in the penitentiary. From that judgment, appellant prosecutes this appeal.
The main questions in the case are: whether the search of appellant's premises was legal or not, and if illegal, whether or not the testimony of Miss Moore, a material witness for the State, was thereby rendered incompetent.
Appellant and his wife resided alone in her home in Lafayette Springs, a small village in Lafayette County. He was around sixty-two years of age and she around seventy-four. On the 30th of June, 1939, between 12:30 and 1 o'clock in the afternoon, Mrs. Lancaster was found with fatal head injuries at the back steps of their home, and died soon thereafter. Those two were the only persons at the home or on the premises at the time. To those soon arriving on the scene, appellant stated that his wife had fallen and struck her head against the corner of the steps leading into the house, and that caused her death. Later in the day, the sheriff of the county came and appellant made no objection to his going about the place in an effort to get the facts of the case. Later on, he arrested appellant and took him to Oxford and lodged him in jail. Two physicians who examined Mrs. Lancaster testified. Their evidence was that she had seven head injuries, six with a blunt instrument and one with a sharp instrument, and that the injuries caused her death. The sheriff suspected from what he saw and heard that appellant had committed the homicide, and a search of his home and premises might reveal the instrument with which it was done. With that in view, on the next day after the homicide, and after he had arrested and placed appellant in jail, he made affidavit for a search warrant and obtained one, and made a search of the premises, resulting in the finding of an axe in the well on the place. Both the affidavit and the search warrant used the word "suspects" instead of the language of the statute "has reason to believe, and does believe." Code 1930, section 1357(7). For that reason the search was illegal. Bouchillon v. State, 179 Miss. 791, 177 So. 34; Jones v. State, 180 Miss. 210, 177 So. 35; Winters v. State, 142 Miss. 71, 107 So. 281. The trial court, on the objection of appellant, ruled out the evidence of the sheriff, for that reason. His action in that respect is sustained by numerous decisions of this Court, amongst which are: Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377; Owens v. State, 133 Miss. 753, 98 So. 233.
It is argued that the search by the sheriff without warrant was legal because it was merely incidental to a valid arrest by him of appellant. The principle contended for is stated in the work of Search and Seizure by Cornelius (2 Ed.), pp. 178-9. It is there stated: "Some of the courts hold that an officer making a valid arrest has the right to search the building occupied by him to the extent that the offenders' control and activities are likely to extend." We decline to decide whether, in a proper case, we would recognize and enforce that principle, for the reason, in our opinion, if sound, it has no application to the facts of this case. Here, one day there was an arrest on the premises and appellant lodged in jail, and on the next day, the search was made. It was not incident to the arrest. The sheriff had no control at that time over the premises as an incident to the arrest.
It is argued further that the search was valid because appellant gave his consent thereto. There was no attempt to show that appellant gave his consent to the search made on the day after the homicide, during which the axe was found in the well. The record shows that on the day before when the sheriff arrived on the scene, he made no objection to his looking around over the premises. The fact that the owner neither consented nor objected to the search would not constitute a waiver. Smith v. State, 133 Miss. 730, 98 So. 344; Boyd v. State, 164 Miss. 610, 145 So. 618. In the Smith case, the owner of the place said to the searching officer, "All right, you are welcome to find it if you can."
While the search was being made, Miss Moore, whose home was only a short distance from the Lancaster home and on an adjoining lot, stood on her premises and saw the search made by the sheriff and the axe drawn out of the well. Over appellant's objection, she was permitted to testify to those facts. We are of the opinion that the court erred in admitting her testimony. It is true that it was not based on any search that she made, but on one made by the sheriff, which was illegal. Her incompetency is upon the same ground as that of the sheriff. To hold otherwise would mean that bystanders off of the premises being illegally searched would be competent to testify to what the search revealed, although the officer making the search would be incompetent.
Reversed and remanded.