POPE v. STATE

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Docket Number

No. 42032.

Attorney(S)

D.A. McLeod, Mt. Olive; W.W. Dent, Collins, for appellant. I. The Court erred in overruling the appellant's motion for a directed verdict. II. The Court erred in holding the search was lawful. III. The Court erred in holding the affidavit was sufficient to authorize the search. IV. The Court erred in admitting the whiskey found in evidence. Collation of authorities: Armstrong v. State, 195 Miss. 200, 15 So.2d 438; Byars v. United States, 273 U.S. 28, 71 L.Ed. 520, 47 S.Ct. 248; Foster v. State (Miss.), 49 So.2d 258; McMillian v. State, 218 Miss. 264, 67 So.2d 290; Manning v. State, 189 Miss. 807, 199 So. 73; Mapp v. Ohio, 6 L.Ed.2d 1081, 81 S.Ct. 1684; Nathanson v. United States, 54 S.Ct. 11; Revette v. State, 209 Miss. 860, 48 So.2d 511; State of California v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R. 2d 513; Walker v. State, 199 Miss. 289, 24 So.2d 751; 74 C.J.S., Searches and Seizures, 867. G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee. I. Where a search warrant is obtained, probability or probable cause is judicially ascertained by the officer issuing the search warrant, and if an affidavit contains matters of fact sufficient on its face, it will be presumed that the officer inquired into the facts before the issuance of the search warrant; and between the person accused and the State, the sufficiency of the facts cannot be inquired into on a prosecution based on evidence obtained by the search. Adjudication by a justice of the peace that there is probable cause for the issuance of a search warrant is sufficient, and judicially establishes the fact that there is such probable cause. Goss v. State, 187 Miss. 188, 192 So. 494. II. No objection was made at the trial to the sufficiency of the affidavit and warrant. A motion for a peremptory instruction was made at the conclusion of the evidence, but this motion was predicated on the question of the sufficiency of the evidence as to ownership of the whiskey and possession of the land. Therefore, appellant is estopped to question the admissibility of the evidence obtained as a result of the search since the point was not raised and preserved below. The general rules as to time, place, and manner of interposing objections to evidence applies to evidence gathered by an unlawful search and seizure. The objection must be made at the time the evidence is offered. Objection on one or more particular grounds waives objections on all grounds not specified therein. General objections are unavailing, and objections not properly made in the trial court will not be considered in the appellate court, except in rare cases where the evidence is so palpably incompetent as to be inadmissible for any purpose. Boat-wright v. State, 143 Miss. 676, 109 So. 710; Conwill v. State, 147 Miss. 118, 112 So. 868; Harris v. State, 153 Miss. 1, 120 So. 206; Peters v. State, 158 Miss. 530, 130 So. 695; Chase's Search, Seizure and Arrest in Mississippi, pp. 377 et seq. III. As to the sufficiency of the evidence herein, we have the unusual situation with an inch and a half or two inches of snow on the ground and one set of footprints going from appellant's house to where the whiskey was found, and returning. Thus, someone from appellant's house must have made those tracks and the presumption is that it was appellant as the husband and head of the household. Quick v. State, 191 Miss. 179, 2 So.2d 812. IV. While Constable Minton could not be positive about the land lines, the trail in the snow conclusively ties the whiskey to appellant's premises. Thus a rebuttable presumption of fact arises that the liquor was in his possession. Chinn v. State, 218 Miss. 724, 67 So.2d 348; Revette v. State, 209 Miss. 860, 48 So.2d 511; Williamson v. State, 191 Miss. 643, 4 So.2d 220.

Judges

McELROY, J.

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1. Intoxicating liquors — unlawful possession — joint possession of husband and wife — rebuttable presumption of ownership.

It is presumed that liquor in joint possession of husband and wife is under control of husband but this presumption gives way when there are persons living in home other than family.

2. Intoxicating liquors — unlawful possession — evidence — beaten path doctrine not applicable.

When persons other than family are living in home in or near which unlawful whiskey is found, State has burden to prove that whiskey was in possession of accused husband.

3. Intoxicating liquors — unlawful possession — burden of proof — circumstantial evidence insufficient to prove possession in husband.

Evidence was insufficient to prove that defendant husband was in possession of liquor found in field some 300 yards from home in which defendant, his spouse and other persons lived.

Headnotes as approved by McElroy, J.

McELROY, J.

The appellant, Pearlie Pope, was convicted in the Circuit Court of Covington County, Mississippi, for the unlawful possession of whiskey and was sentenced to serve ninety days in jail and pay a fine of $500. Sixty days of the jail sentence and $200 of the fine were suspended pending good behavior.

Armed with a search warrant describing the land where appellant lived, Constable Dale Minton proceeded to the premises. Appellant's being absent at the time, Minton served a copy of the warrant on Mrs. Pope and conducted a search of the premises. He found whiskey in a pasteboard box at the end of a trail leading from appellant's house. As unusual as it may have been for Covington County, Mississippi, there was an inch and a half to two inches of snow on the ground and the footprints, taken to be a man's, were plainly visible leading from the house to the cache and returning to the house. There were no footprints except this one trail and they could have only been made by some person walking from appellant's home to the whiskey and returning.

The testimony given by Constable Minton is to the effect that when he went to the home of Pearlie Pope, he was absent and therefore Minton served the search warrant, in compliance with the statute, on Mrs. Pope. He searched the home and found no liquor, but he noticed footprints at the back doorsteps that led out by the barn to a fence about 280 yards. Twenty yards beyond this fence he found a box containing three half pints of whiskey. The same tracks led back to Pope's house. He stated that the tracks looked like a man's tracks, but that he couldn't tell whether or not they were Pope's tracks.

The family consisted of several children. Also living in the house was an old man described as "sort of feebleminded looking".

Minton testified that he did not know who had charge of the land beyond the fence.

At the conclusion of the State's evidence, the appellant made a motion to exclude the evidence offered on behalf of the State and to peremptorily instruct the jury to find the defendant not guilty for insufficiency of evidence to make out a case against the defendant. We believe that the motion should have been granted and the defendant should have been discharged.

(Hn 1) The presumption is that liquor in joint possession of husband and wife is under control of the husband but this presumption gives way when there are other persons living in the home other than the family. It then becomes the duty of the State to prove that this whiskey was in the possession of the defendant.

McMillian v. State, 218 Miss. 264, 67 So.2d 290 held that (Hn 2) "where the whiskey is not found upon premises in the exclusive possession and control of the accused there must be additional incriminating facts connecting him with such possession, other than the mere finding of the whiskey, aided or unaided by a trail, to sustain a verdict of guilty. Lewis v. State, 198 Miss. 767, 23 So.2d 401; Walker v. State, 199 Miss. 289, 24 So.2d 751; Sellers v. City of Picayune, 202 Miss. 741, 32 So.2d 450; Baylis v. State, 209 Miss. 335, 46 So.2d 796; Hansbrough v. State, 209 Miss. 625, 48 So.2d 120; Everett v. State, 209 Miss. 860, 48 So.2d 511; Foster v. State, (Miss.), 49 So.2d 258."

(Hn 3) We feel that the State did not meet the burden of proof imposed upon it, especially in a case of this nature where the evidence is purely circumstantial. The case is therefore reversed and the defendant discharged.

Reversed and appellant discharged.

Lee, P.J., and Kyle, Arrington and Rodgers, JJ., concur.

POPE v. STATE

POPE v. STATE

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