* Corpus Juris-Cyc References: Arrest 5CJ, p. 405, n. 11; p. 410, n. 44; p. 434, n. 84; Criminal Law 16CJ, p. 571, n. 93; Admissibility of evidence obtained by illegal search and seizure, see notes in 24 A.L.R. 1408; 32 A.L.R. 408. In the case of Ford Webb v. Town of Sardis, the town failed to prove that it was a violation of the ordinances of the town to have whisky in possession, and also failed to show that the defendant had whisky in his possession within the corporate limits of the town of Sardis. Likewise in the case of Ford Webb v. State, the state wholly failed to show that Ford Webb, the defendant, had whisky in his possession in justice district No. 5 of Panola county, Miss., as charged in the affidavit; and these errors would be sufficient to demand at our hands a reversal of the cases. But the state proved its case by the officer *Page 95 who made the arrest of the defendant without a search warrant, and took from his hands a black bag, or suit case, is which, upon search thereof, he found two gallons of whisky, and this evidence was improperly permitted to go to the jury over the timely objection and exception of the defendant.
The arrest and search were unlawful; it being conceded by the district attorney that no affidavit was made or search warrant procured, and no other reason given in this record for this search.
Unquestionably this suit case was in the possession of the defendant at the time of the search, and in this particular this case is differentiated from the case of Ross v. State (Miss.), 105 So. 846. In that case the suit case was voluntarily abandoned by the defendant, and ownership and possession denied. In the case here before us, the defendant had the suit case is his hand, though he said he was carrying it for a crippled negro who was some fifteen or twenty feet behind him as they walked along from the bus from which they had disembarked. The suit case was correctly found by the jury to have been in the possession of the defendant. The officer took the suitcase from the hand of the defendant, and searched it without warrant of law. One may be in possession of that which he does not own.
This case is ruled by the case of Tucker v. State,128 Miss. 211, 90 So. 845, 24 A.L.R. 1377, and the more recent case of Canteberry v. State, 107 So. 672 (not yet [officially] reported) wherein Judge HOLDEN said:
"The jumper was folded and tied together, and was hanging to the horn of appellant's saddle. It was a package, or, we may say, it was a bundle of wearing apparel, and was a personal private possession, and it could not be searched without a warrant first being secured for that purpose; therefore the testimony of Murphy, which was secured by unlawful search, was inadmissible at the trial." *Page 96
And this was the view of this court notwithstanding Canteberry was seen to reel, and there was strong reason to suspect that there was whisky close by the horse.
Judge HOLDEN said further in the same case:
"There are several decisions of this court which support the view announced above, and we can see no good purpose to be served in discussing the question, except to say again that the private personal possessions of a citizen cannot be searched unless a warrant is first secured to make the search; and we consider packages in the possession of a person, such as suit cases, grips, bundles of wearing apparel, etc., are private personal possessions which cannot be searched without a warrant, unless the party is first lawfully arrested. None of these conditions appear in this case, and Murphy did not know that the jumper had whisky in it; therefore the judgment of the lower court must be reversed and the case remanded. See Eli Butler v. State,135 Miss. 885, 101 So. 193."
Reversed, and appellant discharged.