* Corpus Juris-Cyc. References; Criminal Law, 17 C.J., p. 325, n. 70; Admissibility of evidence obtained by illegal search and seizure, see notes in 34 L.R.A. (N.S.) 59; L.R.A. 1915B, 834; 24 A.L.R. 1409; 10 R.C.L, p. 933; 2 R.C.L. Supp., p. 1112; 4 R.C.L. Supp., p. 679; 5 R.C.L. Supp., p. 572. The appellant was indicted and convicted in the circuit court of Hancock county of the crime of having in his possession a still used for the manufacture of intoxicating liquors, and was sentenced to the penitentiary for a term of six months. From this judgment he prosecutes this appeal.
The still was found in the appellant's home. A material part of the evidence upon which the appellant was convicted was secured as the result of an illegal search of his home and premises. There the officers found the still. The appellant testified in his own behalf, admitting the presence of the still at his home, but denied that it was in his possession. He testified that it was in the possession of another, and there was some corroboration of his testimony.
In addition to testifying that the still was found at the home of the appellant, the officers testified further to certain conduct of appellant which took place during the search of his home, and which tended to show his guilt. One of the officers testified that, while the search was being made, he caught appellant in the act of pouring out some whisky. And one or more of the officers *Page 614 making the search testified that, while the search was going on, appellant, by means of a hatchet, undertook to mutilate the still. Appellant in his testimony contradicted that of the officers.
To sustain the conviction, the attorney-general relies onBlowe v. State, 130 Miss. 112, 93 So. 577, 24 A.L.R. 1429. It was held in that case that, where a defendant, as a witness in his own behalf, admits in his testimony the only facts which the state has proven as the result of an illegal search, such proof is without harm to the defendant, and therefore, is not reversible error. In that case the defendant was charged with larceny. The searching officers found the stolen goods in his possession. No other fact ascertained by the illegal search, having a bearing on defendant's guilt, was testified to by the officers. The defendant went upon the witness stand and admitted the possession of the stolen goods, and undertook to account for same in such a manner as to exonerate himself from guilt. In the present case, although appellant admitted, while testifying in his own behalf, that the still was found by the searching officers at his home, he denied that it was in his possession. And, furthermore, the officers making the illegal search in the present case testified to certain acts and conduct of the appellant having a material bearing on his guilt which took place during the search, namely, the pouring out of the whisky and the attempts to mutilate the still by means of a hatchet, which were denied by the appellant as a witness in his own behalf. The Blowe case is therefore not controlling, but the Tucker case,128 Miss. 211, 90 So. 845, 24 A.L.R. 1377, and the cases following that, holding that evidence secured by an illegal search cannot be used against a defendant, are controlling.
Reversed and remanded. *Page 615