Chrestman v. State

*676 McGrowEN, J., delivered the opinion of the court. Appellants John M. Chrestman, Lorane Baker, and Garland Savage were indicted by the grand jury of Quit-man county, the indictment charging them jointly with having in their possession unlawfully more than one quart of (intoxicating liquor. Savage and Chrestman were jointly tried in the circuit court, and Chrestman was *677 found guilty as charged, and G-arland Savage was acquitted. Instruction No. 2 for the state indicated that the jury was trying the defendants on a charge of transporting intoxicating liquors. Upon a poll of the jury, six responded that they had convicted the defendant of transporting liquors. The judgment of the court imposed a fine of one hundred dollars and thirty days in- jail “for his offense of transporting liquors” against Chrestman. In this case the conviction was had upon the testimony of Mike Omar, the marshal of the town of Lambert, who arrested the three defendants without a warrant, and who found liquor in the car of the defendant Chrestman. There was a preliminary examination by the court as to the circumstances attending the search of defendant’s car, which search resulted in the marshal, Omar, finding about four gallons of whisky therein. Late that night, hearing the noise of a car running without a muffler on the cut-out, he arose from his bed and went to a filling station near by, where he found the three defendants buying gasoline for the car. He got after them and “bawled” them out for running the car without a muffler on the cut-out, and told them they would have to pay a fine therefor. He declined to say that he arrested them therefor, but said he told them to come back the next morning. There was much examination as to his reason for searching the ear, and, in his own language, “I thought they were drinking, and I just searched the car, and found a three or four gallon keg filled with whisky in the car, which Chrestman owned and was driving.” He finally limited his opinion as to the parties drinking to Savage and Baker. He further said in this examination that he “fussed with them a little, kind of mad, and told them they had to come back the next day and pay a fine for running around over town with the cut-out open.” The statement of the witness was very indefinite as to his reasons for searching the car. It does not appear that the witness thought these parties were drink *678 ing’ to the extent of violating the law; that is, that they were intoxicate.d in a public place. Neither does the record disclose how he gained the opinion that Savage and Baker were drinking. The lower court held that these facts, the substance of which we have detailed, constituted probable cause, that the search was legal, and the information derived thereby was admissible in evidence. The attorney-general in this case contends that the evidence of the marshal was competent for two reasons: (1) That the marshal, Omar, gained the information after he had put the defendant and his companions under arrest for running the car with the cut-out open; and (2) that he had probable cause to believe there was whis-ky in the car from the fact that he found two of the defendant’s associates drinking as detailed in the statement of facts. The mere statement of an officer to a person that he would be expected to come back on the following day and pay a fine for an offense in violation of the law does not constitute an arrest. There is nothing in this record to show that the defendants, or any one of them, had any reason to believe that they were under arrest. The marshal had authority to make the arrest, but from the language used it seems there was no evident purpose to take the defendants into custody, there being neither actual nor constructive detention of the parties. So that the evidence could not be admitted, under the authority of the case of Toliver v. State, 133 Miss. 789, 98 So. 342. 2. "Was there probable cause for the search of defendant’s car, thereby rendering Omar’s discovery of the whisky therein and the attendant circumstances competent evidence? Section 2, chapter 244, Acts of 1924 (section 2239 et seq., Hemingway’s Code 1927), authorizes the search of a motor vehicle for intoxicating liquors by an officer upon probable cause. *679 In Moore v. State, 138 Miss. 116, 103 So. 483, this court held the above section valid and constitutional; that a search was not unreasonable when made on probable canse; that information given an officer by a credible person that intoxicating liquor was being transported in an automobile was sufficient probable cause to justify a search thereof without a warrant therefor. It was further held in that case that the reasonableness of a search with a warrant is a judicial question to be determined by the court in each ease. Chief Justice Smith, spealdng for the court, further said: “When a search is made without a warrant, the person malting it must justify his act in so doing by proving that he had probable cause therefor. In the case at bar the officer could have obtained a warrant to search the automobile, though when the warrant was obtained the automobile might have been beyond reach, by making the same oath before a magistrate that he made oh the trial in the court below; that is, that he had good reason to believe and did believe that intoxicating liquor was being transported in the automobile.” In the case of McNutt v. State, 143 Miss. 347, 108 So. 721, this court further held that whether or not the officer had reasonable cause to make a search of an automobile for intoxicating liquor was a judicial question to be determined by the judge. In the case of Ingram v. State, 111 So. 362, this court held that the judge’s finding of probable cause is subject to review by this court. There is no showing in this record that the defendants, or any of them, were violating any law, unless it was the operation of the car without a muffler on the cutout, nor is there anything to indicate that the officer had good reason to believe that whisky was possessed by the defendants and was in the car. We do not think the mere fact that an officer says he searched a car upon discovering, as he believed, that some inmate of the car had *680 drunk intoxicating liquor is sufficient to Warrant a search, thereof. The case of State v. Messer, 142 Miss. 882, 108 So. 145, is a stronger case for the state than is the case a.t bar; the officer making the arrest in that case did claim to have some information that whisky was in defendant’s car at or near the village of Epley, in that county. We think the evidence was secured in this case by an unlawful search of the defendant’s car, and we cannot agree with the lower court that the facts in this ease warranted the search or were probable cause therefor. The evidence therefore was not competent. We do not decide any other question presented in this case. ' Reversed and remanded.