* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 571, n. 93; Admissibility of evidence obtained by illegal search and seizure, see note in 24 A.L.R. 1408; 5 R.C.L. Supp. 572. The appellant was convicted on a charge of unlawfully having in his possession intoxicating liquor, and, from the sentence imposed, this appeal was prosecuted.
From the testimony in this case it appears that certain peace officers secured a warrant to search the home of John C. Smith. They found Smith on the front gallery of his home and there delivered to him a copy of the warrant. While one of the officers was serving this warrant, the others entered the house and there found this appellant standing in the kitchen with a package under his arm which they took from him. Upon investigation this package proved to be a sack containing two bottles of whisky. The officers testified that the bottles containing the whisky were cold, that they found the impression of two bottles in a cake of ice in a refrigerator in the room, and that they also found a piece of paper in this refrigerator which was similar to the labels on the bottles. They also testified that the sack containing the bottles was dry, but that they found a similar sack lying in front of the refrigerator which was wet.
The appellant and John C. Smith were jointly charged with the possession of this whisky, and, on the trial in the court below, the state offered in evidence the warrant for the search of Smith's home, but no affidavit for a search warrant was produced or offered in evidence. When this warrant was offered, it was objected to on the ground, among others, that it was not shown that it was based upon a proper affidavit. Thereupon counsel for the state announced that they would later show that the affidavit had been lost, but no effort was ever made to show the loss of this affidavit or to prove its contents. When the testimony as to the finding of the whisky was offered, it was objected to on the ground that the evidence was secured by means of an illegal seizure and search. This objection was overruled, and the defendant John C. Smith, was acquitted, while this appellant was convicted. *Page 777
We think this case comes clearly within the rule announced in the case of Tucker v. State, 128 Miss. 211, 90 So. 845, 24 L.R.A. 1377, and the long line of cases following that rule, and especially the cases of Butler v. State, 135 Miss. 885, 101 So. 193, Canterberry v. State, (Miss.), 107 So. 672, andWebb v. State (Miss.), 108 So. 442, in which it was held that the private personal possessions of a citizen cannot be seized and searched without a warrant so to do, unless the party is first lawfully arrested, and that evidence secured by an unlawful seizure and search of such possessions is inadmissible against the party whose rights have been so invaded. In the case at bar, the bundle or package was taken from the person of the appellant, and the evidence secured by an examination of the contents of the package was inadmissible.
The judgment of the court below will therefore be reversed, and the cause remanded.
Reversed and remanded.