Appellants, Ernest Polk, Robert House, James Elliot, Willie Johnson, and Tom Graham, were convicted of a misdemeanor, gambling, in the court of a justice of the peace of Forrest county. From that judgment they appealed to the county court where there was a trial de novo, resulting in a verdict and judgment of guilty. From that judgment they appealed to the circuit court *Page 510 where the judgment of the county court was affirmed. The appeal to this court was allowed by the circuit judge under the authority of section 705 of the Code of 1930 upon the ground that in the determination of the case a constitutional question was necessarily involved.
Appellants were convicted alone upon the testimony of Walter Risher, a constable of Forrest county. He testified substantially as follows: That on a certain night in June, 1931, his son told him that there was gambling going on in the home of appellant Ernest Polk; that his son told him that he had been so informed by someone else, whose name was not given; thereupon the witness, without a warrant of arrest or a search warrant, went to the home of Ernest Polk and went on his premises near one of the windows of the room, wherein he afterwards found gambling was going on, and there listened and heard persons talking and cards falling on a table; that he tried to see the game going on through the window, but was unable to do so; thereupon he took his walking cane, broke one of the panes of glass in the window, raised the shade and saw the game in progress, and saw that the appellants were the parties engaged in it. The appellants objected to the evidence of the constable on the ground of its incompetency. The court overruled the appellants' objection. There being no other evidence in the case, appellants thereupon requested the court to direct a verdict in their favor, which the court refused to do.
The question involved is the constitutionality of section 1235 of the Code of 1930, which follows: "It shall be the duty of the sheriff, coroner, justices, constables, and all other civil officers of the county, and of every police officer of any city, town or village, when they know or have reason to suspect any person to be guilty of a violation of the provisions of law in reference to gambling or gaming, or operating a bucket-shop or any business dealing in contracts commonly called `futures,' to apprehend such person, with or without warrant, and *Page 511 bring him before some officer having jurisdiction thereof, and to appear and prosecute such offender; and for that purpose any such officer, if he know or have reason to believe that any gambling or gaming is being carried on in any house, room, or place, may lawfully break into the same with or without warning to the persons therein."
The statute provides for either an arrest or a search or both with or without a warrant therefor. The last clause of the statute authorizes the officer, for the purposes of making the arrest, to break in and search the house, room, or place. Section 23 of the Constitution provides that the people shall be secure in their persons, houses, and possessions from unreasonable seizures or search, and that no warrant shall be issued without probable cause supported by oath or affirmation specially designating the place to be searched and the person or thing to be seized.
The question is, What is an unreasonable arrest? That question is answered by the decisions of this court in Orick v. State,140 Miss. 184, 105 So. 465, 41 A.L.R. 1129; Iupe v. State, 140 Miss. 279,105 So. 520; and Butler v. State, 135 Miss. 885, 101 So. 193. It was held in the Orick case that section 23 of the Constitution prohibits the arrest of a person, without a warrant, for a mere misdemeanor not committed in the presence of the officer, and that evidence obtained by means of an unlawful arrest is not admissible.
In the Butler case the policeman making the arrest had no warrant for the arrest, and did not know at the time of making it that the defendant was committing a crime in his presence, although he suspected that he was. When the policeman undertook to arrest the defendant, the latter fled. In his flight the policeman shot at him. When the shot was fired, the defendant dropped a sack and ran away from it. The policeman found intoxicating liquor in the sack. Upon the evidence of the policeman, the defendant was convicted of the crime of having liquor *Page 512 in his possession. The court held that section 23 of the Constitution was violated in making the arrest, and that the evidence obtained as the result thereof was incompetent. To the same effect is the Iupe case.
The statute in so far as it authorizes an arrest, without a warrant, for a misdemeanor not committed in the presence of the officer making the arrest, violates section 23 of the Constitution, and that is also true of that part of the statute which authorizes a breaking into of a house, room, or place, for the purpose of searching and making an arrest, without a search warrant.
So far as appellant Ernest Polk is concerned, the evidence against him was obtained by both an illegal search and an illegal arrest, and therefore, under numerous decisions of our court, it was not admissible. That, however, is not true of the other appellants. They have no right to complain of the evidence obtained against them by the illegal search of the premises of appellant Polk. In order for a defendant to avail himself of the constitutional provision against unlawful search and seizure, the search must invade his house or possessions and not the house or possessions of another. Lee v. City of Oxford, 134 Miss. 647, 99 So. 509; Lovern v. State, 140 Miss. 635, 105 So. 759.
Under those decisions, up to the time the constable saw the actual gambling going on and the parties engaged therein, he had invaded no right of the appellants, other than Polk. They were committing a misdemeanor in his presence, and, his presence being legal as to all of the appellants except Polk, their arrest was legal and his evidence against them was competent. It follows from these views that the judgment is affirmed as to all of the appellants except Polk, and as to him it is reversed and he is discharged.
However, the writer of this opinion, speaking for himself alone, is of the opinion that those decisions, holding that, in order for a defendant to avail himself of the constitutional right against unlawful search and seizure, the *Page 513 search must invade his house or possessions and not the house or possessions of another, are unsound. The invited guests of the owner of the house or possessions ought to be entitled to the same protection as the owner. An invited guest, whether he is a guest for a day, week, month, or year, is rightfully in the home of his host; he is a tenant by sufferance for the time being; it is his home, and he is entitled to the same protection as the host.
Reversed in part, and affirmed in part.
ETHRIDGE and GRIFFITH, JJ., join in this opinion.