Opinion
No. 31893.
November 11, 1935.
SEARCHES AND SEIZURES.
That search warrant issued by competent judicial officer was made returnable before circuit judge held not to render it void (Code 1930, sections 1320-1324, 1979, 2013).
APPEAL from the circuit court of Jones county; HON.W.J. PACK, Judge.
F.B. Collins, of Laurel, for appellant.
The search warrant in this case is void, first, because it is made returnable before "W.J. Pack, Circuit Judge."
It is not made returnable before a court or to a court, but is made returnable to "W.J. Pack, Circuit Judge."
24 R.C.L., page 702, sec. 3; 35 Cyc. 1267.
The search warrant in this case is utterly void because neither the common law nor the statute authorizes a justice of the peace to issue a search warrant returnable before a circuit court in vacation, if it should be considered in this case that the search warrant in question was made returnable before a circuit court, but which we do not.
Young v. State, 140 Miss. 165, 105 So. 461; 20 Encyc. Pleading Practice, page 1175; 21 R.C.L. 1267, sec. 8; Sections 2097, 2098 and 2101, Code of 1930. W.D. Conn, Jr., Assistant Attorney-General, for the state.
The warrant itself shows that it is returnable before "W.J. Pack, Circuit Judge, at his office at Laurel, Mississippi." This court judicially knows that Laurel, Mississippi, is in the Second Judicial District of Jones county and that Jones county is in the Twelfth Circuit District of Mississippi.
Ladd v. Craig, 94 Miss. 659, 47 So. 777; Beal v. State, 108 Miss. 524.
In the case of Mooney v. State, 160 Miss. 701, 135 So. 200, it was held that the failure of the search warrant to state that the person to whom it was made returnable was a justice of the peace did not invalidate the warrant where such person was, in fact, a justice of the peace and trial was had before him.
By section 740 of the Mississippi Code of 1930, the circuit judge is made a conservator of the peace for the state "with full power to do all acts which conservators of the peace may lawfully do."
Section 1975, Code of 1930.
It is well enough to observe that the execution of an affidavit for a search warrant and the issuance of such search warrant does not have the effect of starting a prosecution against a party named in the search warrant. Prosecution has not begun until an affidavit charging crime has been lodged against a "defendant," or until the grand jury of a county has returned an indictment against him.
Keyes v. State, 155 Miss. 574, 124 So. 789; McKinney v. State, 146 So. 458.
Under a search warrant duly issued by a competent judicial officer, a search was made of the premises of appellant and there a large quantity of whisky and gin was found. The liquors were seized, the appellant was arrested and placed in jail. Thereafter he gave bond and was released. He was indicted by the grand jury. Upon the trial under the indictment he was convicted, and on this appeal he contends that the search warrant was void, the search illegal, and that the evidence thereby obtained was inadmissible.
The point presented is that the search warrant was made returnable before the circuit judge. We are of opinion that the objection is not sustainable. There are two objects in making a search warrant returnable before a competent officer or court: First, that the accused may have ready opportunity to give bond if arrested under the search warrant, or to obtain a speedy trial if unable to give bond; and, second, to have a remedy for the recovery of the property seized under the search warrant, if entitled thereto. As pointed out in Bufkin v. State, 134 Miss. 1, 19, 98 So. 452, the second reason disappears, for there was no property in the liquors seized under the circumstances shown in this case. Sections 1979, 2013, Code 1930.
As to the first object or purpose, a circuit judge as conservator of the peace may fix the bond in such a case when returnable before him, or if the accused be unable to give bond, the judge may order the accused to be forthwith carried before any justice of the peace for trial. See sections 1320-1324, Code 1930. Moreover, we think this case, in principle, has already been decided in Watkins v. State, 158 Miss. 339, 130 So. 477.
This renders it unnecessary to consider the respectable line of cases which hold that the admissibility of the evidence obtained under a search warrant depends upon the authority of the officer at the time the search was made, and not upon any error or omission in respect to the return.
Affirmed.