Opinion
No. 28113.
December 2, 1929.
1. CRIMINAL LAW. Instruction excluding idea that jury must believe beyond reasonable doubt that defendant was guilty held erroneous.
In liquor prosecution, instruction stating in effect that it was unnecessary that jury know defendant was guilty, but it was sufficient for conviction if they believed from all evidence in case that defendant was guilty, and thus excluding idea that jury must believe beyond reasonable doubt that defendant was guilty, held erroneous, since it put conviction too much upon mere belief in defendant's guilt.
2. INTOXICATING LIQUORS. City policemen could serve within city warrant issued by justice of peace directed to any lawful officer of county ( Hemingway's Code 1927, sections 2238, 2241).
Under Hemingway's Code 1927, sections 2238, 2241 (Laws 1924, chapter 244, sections 1, 5), city policemen were authorized to serve within city search warrant issued by justice of the peace directed "to any lawful officer of F. County."
3. CRIMINAL LAW. Evidence secured by policemen under search warrant issued by justice directed to any lawful officer of county held competent ( Hemingway's Code 1927, sections 2238, 2241, 3148).
In liquor prosecution, evidence secured by policemen under search warrant issued by justice of peace, directed "to any lawful officer of F. county" and served within city, held admissible under Hemingway's Code 1927, sections 2238, 2241 (Laws 1924, chapter 244, sections 1, 5), relating to search warrants, and Hemingway's Code 1927, section 3148 (Code 1906, section 3937), providing that any process appearing to be in other respects duly served shall be good, though not directed to any officer.
4. CRIMINAL LAW. Where affidavit for search warrant was filed with justice of peace but affidavit charging crime was filed before clerk of county court, county court had jurisdiction to try defendant for possessing liquor.
Where affidavit for search warrant was filed with justice of peace of beat 1 of county, but affidavit charging crime of unlawful possession of intoxicating liquor and charging sale thereof was filed with clerk of county court, county court had jurisdiction to try defendant, since no affidavit charging crime was filed with justice of the peace.
APPEAL from circuit court of Forrest county. HON. TOM TAYLOR, Judge.
Morris Wingo, of Hattiesburg, for appellant.
The state is required to prove the defendant guilty "beyond every reasonable doubt;" and the jury should have been required by the instructions of the state to so believe from the testimony.
McGuire v. State, 37 Miss. 369; Goodwin v. State, 73 Miss. 873, 19 So. 712; Gordon v. State, 95 Miss. 543, 49 So. 609; Nelson v. State, 129 Miss. 288, 92 So. 66.
The making of an affidavit charging the possession of liquors for sale and the issuance of a search warrant commanding the search of the defendant's premises located in the territorial jurisdiction of the issuing justice of the peace and further commanding the arrest of the defendant and the production of the liquors found and the body of the defendant for trial on a date definite and fixed is in fact and in law the beginning of a prosecution by the state against the defendant and that thereupon the justice of the peace acquired full and complete jurisdiction of said cause and exclusively empowered to deal therewith.
Smithey v. State, 93 Miss. 257, 46 So. 410; Neely v. State, 100 Miss. 211, 56 So. 377; Hampton v. State, 138 Miss. 196, 103 So. 10.
Where affidavit for search warrant was filed with a county court, the county court had no jurisdiction to try defendant for possession of liquor.
Sec. 1, Chapter 244, Laws of 1924; Sec. 2238, Hemingway's Code of 1927.
Forrest B. Jackson, Assistant Attorney-General, for the state.
It is not always necessary in every case that the jury should be instructed that before they can convict they must believe the evidence beyond a reasonable doubt.
McGuire v. State, 37 Miss. 369; Haynie v. State, 32 Miss. 400; Singleton v. State, 71 Miss. 789, 16 So. 295.
The filing of an affidavit for a search warrant with the justice of peace is not the beginning of the action against appellant.
Smithey v. State, 93 Miss. 257, 46 So. 410.
All affidavits charging one with crime must conclude with the phrase "against the peace and dignity of the state." The affidavit for the search warrant in the instant case not concluding in such manner, the filing of the same was not the beginning of the prosecution.
State v. Morgan, 79 Miss. 659, 31 So. 338; Bufkin v. State, 134 Miss. 1, 98 So. 452; Kennedy v. State, 139 Miss. 579, 104 So. 449.
A policeman in the city of Hattiesburg is a public officer in Forrest county, Mississippi, and authorized to serve a search warrant directed to any officer of the county.
Shelby v. Alcorn, 36 Miss. 273; Monette v. State, 91 Miss. 662, 44 So. 989, 124 A.S.R. 715.
On an affidavit charging appellant with unlawful possession of intoxicating liquor, filed in the county court of Forrest county, Joe Keys was tried, convicted, and sentenced in said court. He appealed to the circuit court, where the case was affirmed, and he prosecutes an appeal here.
We are of opinion that the evidence offered by the state was ample to sustain the conviction.
The instructions given for the state are as follows:
1. "The court instructs the jury for the state that if you believe from all the evidence in this case that the defendant unlawfully had intoxicating liquor in his possession, or under his control as charged in the affidavit, then it is your sworn duty to find the defendant guilty as charged in the affidavit."
2. "The court instructs the jury for the state that you do not have to know the defendant is guilty as charged before you are warranted in returning a verdict of guilty; all that is required is that if you believe from all the evidence in the case that the defendant is guilty as charged, then it is your sworn duty to find defendant guilty as charged."
These were the only instructions submitted to the jury for the state.
On behalf of defendant the following instruction is the only one given:
"The court instructs the jury for the defendant that the testimony in this case is circumstantial and that any and all such evidence should be weighed and considered by the jury carefully and cautiously."
First, it is assigned here that both instructions for the state are erroneous, for the reason that the jury are not told that they must believe that the defendant is guilty beyond a reasonable doubt. It will be observed that the case went to the jury without any instruction upon the theory of reasonable doubt, and that the defendant did not ask any instruction on that theory; and therefore, taking all the instructions together, this essential element is omitted from all the instructions.
The instructions, taken as a whole, are fatal to the conviction in this case, especially the second instruction for the state, excluding the idea that the jury must believe beyond a reasonable doubt that the defendant is guilty. It puts the conviction too much upon a mere belief in his guilt. See Godwin v. State, 73 Miss. 873, 19 So. 712, and authorities there cited.
The facts in this case do not authorize us to say that the refusal of these instructions constitutes harmless error.
It is further assigned as error that the court, over the objection of the appellant, permitted the officers to testify as to the facts of the crime discovered by them on a search warrant issued by a justice of the peace, directed "to any lawful officer of Forrest county, Mississippi." And, also, that the officers who made the search were policemen of the city of Hattiesburg, and therefore not lawful officers of said county; the evidence adduced being that which the officers discovered on the search made by virtue of the search warrant.
Section 2238 of Hemingway's Code of 1927, chapter 244 of the Laws of 1924, makes it the duty of any justice of the peace of the county, or circuit judge or chancellor of the district to issue the search warrant directed to the sheriff or any constable or marshal or policeman, if in a municipality, commanding him to search the place described.
Section 2241, Hemingway's Code 1927, chapter 244 of the Laws of 1924, sets forth a form of such warrant to be issued, part of which is in this language, "to any lawful officer of [said] county."
The search warrant in this case was in the form prescribed by the statute, and we think that any of the officers named in section 2238, supra, were authorized to serve the warrant within the territory in which they were authorized, as officers, to act. This search warrant was served by policemen of the city of Hattiesburg, within the city. The policemen did not undertake to serve it in territory outside of the corporate limits of the city of Hattiesburg. Hence, we think no error may be predicated thereon.
Section 3148, Hemingway's Code 1927, section 3937 Code of 1906, is as follows: "Any process appearing to be in other respects duly served, shall be good, though not directed to any officer."
The search warrant in this case was served by these policemen within the city of Hattiesburg, of which, according to the record, they were police officers. So far as this objection is concerned, the evidence secured by the policemen, under the circumstances which we have detailed, was competent.
Third, it is insisted that there was no jurisdiction in the county court to try this appellant. This assignment of error is based on the fact that the chief of police first made and filed an affidavit for a search warrant with a justice of the peace of beat 1 of said county, and thereafter filed an affidavit, charging the crime of unlawful possession of intoxicating liquor by Joe Keys, the appellant, and charging him with the sale thereof, before the clerk of the county court; and upon this affidavit the appellant was tried over his objection. It is insisted that the affidavit for the search warrant lodged the jurisdiction to try the crime in the justice of the peace court, the crime having been committed in beat 1, at a place which was in the city of Hattiesburg.
The affidavit for the search warrant was not an affidavit charging a crime. It may well have been that the search warrant would have been fruitless in obtaining any evidence of crime. In that case, it could not be seriously contended that the appellant, because of an affidavit for a search warrant, stood charged with a crime. He was not charged with a crime until the affidavit was filed in the county court, and the filing of the affidavit was the beginning of the criminal action, and no criminal action was instituted until the filing thereof in the county court. No affidavit charging Joe Keys with crime was filed with the justice of the peace. The cases cited by counsel are not in point here.
The instructions given for the state were erroneous, as we have set out above, and constitute reversible error in this case, but we find no other error in the record.
Reversed and remanded.