Opinion
No. 33351.
October 10, 1938.
1. CRIMINAL LAW.
In order for evidence which was obtained by search of accused's premises to be admissible in prosecution for unlawful possession of intoxicating liquor, the party making the search must have had such reason therefor as to cause one reasonably to conclude from the facts that the accused possessed intoxicating liquor (Hemingway's Code, sec. 2088).
2. CRIMINAL LAW. Intoxicating liquors.
The omission of the word "good" preceding the phrase "reason to believe and does believe" in affidavit for search warrant was not fatal to the affidavit, and search warrant and evidence obtained under such warrant was admissible in prosecution for possession of intoxicating liquor (Hemingway's Code, sec. 2088).
3. INTOXICATING LIQUORS.
Where no search warrant was issued, question of whether there was probable cause for search is open to inquiry in prosecution based on evidence obtained under the warrant, and if evidence upon which the searching officer answered did not amount to probable cause, search would be illegal.
4. CRIMINAL LAW.
Where an officer having authority to issue a search warrant is charged with duty of determining whether information presented to him is sufficient to authorize such issuance and he decides that it is sufficient and issues the warrant, and evidence is found by reason of the search, such evidence is admissible in a prosecution against the party searched.
5. INTOXICATING LIQUORS.
Evidence was sufficient to sustain conviction of possession of intoxicating liquor.
APPEAL from the circuit court of Leake county; HON. D.M. ANDERSON, Judge.
W.T. Weir, of Philadelphia, for appellant.
We respectfully submit that the affidavit for search warrant was fatally defective for the reason that it recited in the following language, to-wit: "This day personally appeared before me, the undersigned officer of said county, A.N. Tuck of said County, who is known to be a credible person, who upon his oath says that he has reason to believe and does believe that intoxicating liquor is being," etc. This affidavit is condemned by the Supreme Court in the case of State v. Watson, 98 So. 241, 133 Miss. 796, which holds that, "It was necessary for affidavit to state `that affiant had good reason to believe and that he did believe that liquor was being kept on the premises.'" In the case at bar the affidavit omits "and has good reason to believe."
Section 2088, Hemingway's Code, Section 1749, Code of 1906, Section 1975, Code of 1930.
We respectfully submit that in this case at bar the officer evidently did not have a very good reason to believe that intoxicating liquor was stored, etc., for he went to a place near the residence and watched to see if there were any customers that night coming or going and he evidently did not think there was anything intoxicating sufficiently to make a search worthwhile, and he or they slipped away and returned home and waited until the next night when they returned and again secreted themselves near the house or residence of the appellant and waited until they saw some evidence of customers and then they undertook to make the alleged search. Now if the affiant had good reason to believe or any reason to believe sufficient to obtain a search warrant, why did he not proceed immediately to serve it? It was made returnable instanter, and why did he not execute it instanter?
In order to justify the issuance of a search warrant under our statute the affidavit therefor must be based on information and belief of which affiant is possessed at the time of making of the affidavit. The probable cause must exist then. The search cannot be justified on information of the affiant obtained during the search.
Sellers v. Lofton, 116 So. 104, 149 Miss. 849; Loeb v. State, 98 So. 449, 133 Miss. 883; Elardo v. State, 145 So. 615, 164 Miss. 628; Norman v. State, 146 So. 639, 167 Miss. 690.
We further respectfully submit that the search warrant was issued by the mayor of the town, that the seal of the town is omitted from the search warrant and the affidavit therefor.
Section 2528, Code of 1930; Dennis v. Town of Walnut Grove, 157 Miss. 797, 128 So. 557.
It has been held that the warrant must describe the property to be searched with particularity.
Vaughn v. State, 136 Miss. 314, 101 So. 439; Tucker v. State, 128 Miss. 211, 90 So. 545; Owens v. State, 133 Miss. 753, 98 So. 235; Butler v. State, 129 Miss. 778, 93 So. 3; Stranghi v. State, 98 So. 340; Taylor v. State, 98 So. 459.
Inasmuch as it is not clear whether the search warrant was executed by Mr. Tucker or Mr. Parks and to such extent that there is a reasonable doubt arising as to whether it was served before or after the first bottle of whiskey was found, we respectfully submit that the doubt should be resolved most strongly against the state and in favor of the accused.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The affidavit may be made alleging that affiant "has reason to believe and does believe." Section 1975 and Section 1978, Code of 1930. The constitutionality of this provision has been upheld in Loeb v. State, 133 Miss. 883, 98 So. 449, and Winters v. State, 142 Miss. 71, 107 So. 281.
Harris v. State, 153 Miss. 1, 120 So. 206.
A search made on the day following the issuance of an instanter search warrant is timely.
Jordan v. State, 147 Miss. 24, 112 So. 590.
A justice of the peace may issue a search warrant to be executed in another district and make it returnable before himself.
Dawsey v. State, 144 Miss. 452, 110 So. 239; Reynolds v. State, 136 Miss. 329, 101 So. 485; Bufkin v. State, 134 Miss. 1, 98 So. 452.
The issuance of the search warrant is not the beginning of a prosecution.
Keyes v. State, 155 Miss. 574, 124 So. 789; McKinney v. State, 146 So. 458.
Neither a justice of the peace nor an ex-officio justice of the peace is required by law to use a seal to authenticate his acts.
Murphy v. State, 164 Miss. 296, 144 So. 699.
The allegation "residence of Joe Creel in 2nd district of Lake County, Miss." was a sufficient designation. All of the balance may be treated as surplusage.
Bradley v. State, 134 Miss. 20, 98 So. 458; Forshee v. State, 152 Miss. 566, 120 So. 462.
On this record it is immaterial whether a copy of the warrant was ever served on appellant. The officers had the copy for service and no complaint is shown to have been made by appellant that no copy was delivered to him prior to search.
Forshee v. State, 152 Miss. 566, 120 So. 462; Dunn v. State, 146 So. 448.
In this case the appellant was indicted, tried and convicted of the possession of intoxicating liquor, and sentenced to pay a fine of $200 and costs. The evidence upon which the conviction was had was procured by a search of the premises of appellant. The affidavit upon which the search warrant was issued was made by A.N. Tucker, an officer of the county, before H.H. Wallace, mayor and ex officio justice of the peace of Carthage, Leake county, Mississippi; and recited that A.N. Tucker, who is known to be a credible person, upon his oath said that he had reason to believe, and does believe, that intoxicating liquor is being stored, kept, owned and controlled for the purposes of sale, in violation of law; and, second, that it was being sold or offered for sale in violation of law, in the residence, outhouse, barns, cribs, stalls, smokehouse, and in the fields, yard, garden and woods near the residence of Joe Creel in the second district of said Leake county, on section 11, township 10, range 7, in Leake county, Mississippi, more particularly described as "about one mile west of Leake county courthouse," in violation of the laws of the state of Mississippi. It avers that this belief is not feigned of malice against Joe Creel, but upon credible information; whereupon affiant prayed for the issuance of a search warrant, which was issued upon the same date as the affidavit, the 21st day of January, 1937. On the evening of that day the affiant, a constable of the district, and a deputy sheriff of the county, secreted themselves in a straw field near the home of Joe Creel, for the purpose of watching to see whether any customers entered the residence. After a time they returned to town; and on the following night again went to the residence of the defendant, Joe Creel, served a warrant upon him, made a search, and found two bottles of liquor; whereupon he was arrested and charges were preferred against him before the justice of the peace of the district in which he lived. He was tried, found guilty, and fined $100; from which sentence he appealed to the Circuit Court, where he was tried anew.
Upon being offered by the state, the testimony procured by search of the premises was objected to, principally upon the ground that the affidavit did not recite the word "good" as descriptive of the word "reason," making it read "has good reason to believe and does believe," instead of "has reason to believe and does believe." The appellant cites the case of State v. Watson, 133 Miss. 796, 98 So. 241, in support of this contention. What was there involved was the omission of the words, "and does believe;" and while the Court in that opinion said that the affidavit should state that the affiant had "good reason to believe and does believe," the question did not turn upon the words "has reason," or "has good reason," but upon the omission of the words "and does believe," holding that these words were essential. The statute uses the words, "has reason to believe and does believe." Hemingway's Code, section 2088. Such reason must amount to probable cause. In other words, there must be such reason as to cause one reasonably to conclude from the facts that the person suspected was possessed of intoxicating liquor. We do not think the omission of the word "good" is fatal to the affidavit and search warrant.
The appellant sought to inquire into the sufficiency of the officers' reason for making the affidavit. The court held that since the justice of the peace issued the warrant upon the affidavit, he had adjudged the facts to be sufficient to constitute probable cause; and on the trial it was held that his judgment in this regard could not be inquired into subsequent to the issuance of the writ; and we have so held. Sykes v. State, 157 Miss. 600, 128 So. 753.
There is a difference between search upon probable cause without affidavit and warrant, such as searching a motor vehicle upon probable cause and without a warrant, and a case where a justice of the peace or other officer authorized to issue a warrant adjudges the existence of probable cause by issuing a warrant upon the affidavit. Where there is no warrant issued the question of whether there was probable cause is open to inquiry, and if the evidence upon which the officer acted in such case did not amount to probable cause, then the search would be illegal; but where an officer having authority to issue a warrant is charged with the duty of determining whether the information presented to him is sufficient to authorize such issuance, decides that it is sufficient, and issues the warrant, and evidence is found by reason of the search, then such evidence is admissible on the trial.
The judgment is therefore affirmed.
Affirmed.