Reece v. State

273 S.W.2d 475, 197 Tenn. 383, 1 McCanless 383, 1954 Tenn. LEXIS 498

• Court: Tennessee Supreme Court
• Decided: November 16, 1954
• Status: Published

Opinions

Mr. Justice SwepstoN

delivered the opinion of the Court.

Defendant was convicted of the unlawful possession of intoxicating liquor with the punishment fixed at a fine of $100 and 60 days in jail from which he has appealed.

The two questions on appeal are, first, whether the search of the jeep automobile in which 119 bottles of whisky were found was lawful, and second, whether or not the defendant has been proved to be the owner of same.

Officers armed with a search warrant for the search of a seven or eight room, black building located along the highway out in the country which warrant expressly included all of the buildings, outhouses and vehicles found thereon, entered the premises, and as one of the officers started reading the warrant to the defendant a jeep automobile was driven rapidly from the garage of the premises by some man who was never identified. After the officers had made a quick search of the premises which consumed a very few minutes, the officer in charge directed to the others to find the jeep if they could. By following the tracks of the jeep they located the same along an abandoned road about one-half mile from the premises described in the warrant. There was no one near the jeep and the same was stuck in the mud. They did not see any intoxicants at first but they smelled the odor of whisky and observed the liquid dripping to the ground. They then searched the yehicle and found 119 pints under the seat and in a trap. The defendant was not placed under arrest but was left alone on the premises searched. The officer testified that the jeep bore the number 10087 on the back of it. The deputy in the office of the County Court Clerk of Washington County filed a copy of an automobile registration certificate dated May 19,1953, showing a 1953 Willys Jeep to be registered in the name of Bill Beece and the 1953' license tag bore the number of 6 — C—10087. This witness said that she did not know who owned the particular vehicle on July 19, 1953, the date on which the search was made under the warrant, and that the records in the County Court Clerk’s office did not show the owner as of this latter date.

Defendant’s counsel concedes that if this vehicle had been stationed on the premises at the time of the search then under the authority of Lawson v. State, 176 Tenn. 457, 143 S. W. (2d) 716, the officers were warranted in searching the jeep. Counsel claims, however, that since the jeep departed before the search began and was finally searched a considerable distance from the premises the officers did not have the legal right to search the vehicle, relying for their authority upon the case of Dolen v. State, 187 Tenn. 663, 216 S. W. (2d) 351.

The officers testified that the jeep along with three or four other automobiles, was on the premises when the officer began reading the search warrant- to defendant but that the jeep -was driven away before he finished reading the warrant.

With due appreciation of the zeal and ingenuity of counsel we think this is an untenable theory. Adoption of such a theory would make it not only possible but practical for one engaged in the illicit handling of liquor to keep his entire stock of merchandise in covered trucks on the premises and poised for flight and enable all hands to weigh anchor and set sail in all directions before the reading of the warrant could be finished and thereby forestall a search of all of the vehicles.

We think the nexus between the departure of this vehicle from the premises under the stated circumstances and the tracking and locating the same in the mire off an abandoned road fully satisfies the requirements of law.

Moreover, the detection of the smell of liquor when the officers came to the jeep and the dripping of the liquid from the car was a sufficient justification under our cases for the search of the vehicle without a warrant as being a public offense committed in their presence.

With reference to the second question, — Code Section 2702 provides that the registration of any vehicle in the name of any person constitutes prima facie evidence of ownership of such vehicle by the party to whom it is registered, and also prima facie evidence that it was being used on the business of the registrant. The defendant did not take the stand to rebut this presumption.

The assignments of error .are overruled and the judgment of the lower Court is affirmed.