Duckworth v. Town of Taylorsville

*442 Anderson, J., delivered the opinion of the court. Appellant was tried and convicted before the mayor of the town of Taylorsville of the charge of carrying a pistol concealed. From that judgment he appealed to the circuit court where there was another trial and conviction. From that judgment appellant prosecutes this appeal. Sections 1103 to 1105, inclusive, Code of 1906 (sections 829' to 831, inclusive, Hemingway’s Code), were duly adopted by the mayor and board of aldermen of Taylorsville as an ordinance of that municipality. This ordinance deals with the carrying of concealed weapons. It provides, among other things, that the carrying of a pistol concealed shall be punishable as a misdemeanor. Appellant was convicted of a violation of that ordinance. Appellant, with some other negroes, was sitting on the curb of a street in the town of Taylorsville. At the time appellant was found w!ith the pistol it was night, and very dark. J. M. Hester, the marshal of the town, walked up to the appellant, -struck a match in order to see, and searched appellant while the latter was in a sitting position. No pistol was found on appellant’s person in this search. The marshal then struck another match, *443 and made appellant get np from his sitting to a standing position. Thereupon the marshal discovered that appellant had been sitting on a pistol. The pistol was lying on the place where appellant had been sitting, and while he was sitting it was so covered by the person of appellant as to be concealed. The ordinance makes the carrying concealed of the weapons therein described a misdemeanor. Appellant requested a directed verdict in his favor upon the ground that the evidence showed without conflict that at the time the pistol was discovered he was not carrying it concealed. This request was not granted. That action of the court is assigned as error. "We are of opinion that appellant’s position is unsound; that there was sufficient evidence to go to the jury on the issue as to whether appellant was carrying the pistol concealed which was found under his person when he arose from his seat. It is true at the time the pistol was found appellant was not carrying it. It was concealed, however, about his person, and that fact, with the other circumstances, was sufficient to justify the verdict of the Wry. Appellant contends that he was entitled to a directed verdict of not guilty for the further reason that the evidence of his guilt was procured by the marshal of Taylorsville illegally, in that the pistol was discovered by the marshal by reason of an illegal search of the person of appellant by the marshal; that, when the search was made which revealed the pistol, the marshal had neither a search warrant to search the person of appellant nor a warrant for his arrest. There is neither statute nor common-law authority in this state for the issuance of a warrant for the search of the person of an individual, and evidence procured by a search of the person of the defendant where there is no authority to arrest is inadmissible against the defendant. Comby v. State (Miss.), 106 So. 827. The evidence in this case is silent as to whether the marshal had a warrant for the arrest of appellant. It *444 might be reasonably inferred from the manner in which the arrest came about that he had no such warrant; however, there is no direct evidence bearing on the question either way. Furthermore, appellant’s motion to exclude the testimony for the state does not point out as a ground for such motion .the illegal search of appellant by which the evidence against him was procured. The motion is in general terms, except the last paragraph, which is based on the alleged ground that the affidavit charged no offense. Neither was the evidence for the town objected to by the appellant, as it was offered, upon the ground that it had been procured illegally. .Nowhere in the record was that specifically made a ground of objection to the town’s evidence. The question is therefore raised here for the first time. We hold that that cannot be done; that the trial court cannot be put in error by raising a question in this court not raised in the court below. If the question had been raised in the trial court, and the evidence ruled out upon the ground that it had been procured illegally, the town might have been able to procure sufficient evidence to convict from other sources. One case cannot be made in the trial court and another in this court. The record made by the parties there must stand as the record in this court. We do not deem the other questions argued of sufficient importance to call for a discussion by the court. Affirmed.