Opinion
No. 33480 1/2.
December 5, 1938.
1. ARREST.
Where some offense known to the law has been committed, or is said to have been committed, and affidavit based thereon is merely insufficient to charge such offense against the accused, an officer may lawfully execute a warrant for arrest of accused without being required to inquire into the sufficiency of such affidavit.
2. ARREST.
Where affidavit for arrest alleged that accused had disturbed the peace in named city, and sheriff was merely informed that accused had disturbed two persons not named in the affidavit, without any information of how the alleged disturbance occurred, arrest of accused was unlawful.
3. CRIMINAL LAW.
On appeal from conviction based on allegedly unlawful arrest and search, reviewing court would assume that sheriff who effected the arrest knew that a general charge of having disturbed the peace in named city, as found in affidavit for arrest, was not punishable as a crime.
4. CRIMINAL LAW.
Where arrest of defendant for disturbing the peace was unlawful because of insufficiency of affidavit and of sheriff's knowledge concerning the offense, but after such arrest, search of defendant's person revealed intoxicating liquors, and admission of such liquor in trial for unlawful possession of liquor was duly objected to and objection was renewed by motion for peremptory instruction, peremptory instruction should have been granted.
APPEAL from the circuit court of Humphreys county; HON. S.F. DAVIS, Judge.
H.F. Jones, of Belzoni, for appellant.
The first step necessary in the prosecution of a person for a crime is the filing of an affidavit. 16 C.J. 290. An affidavit filed afterwards is too late. If an affidavit is insufficient it cannot confer jurisdiction to issue a warrant. 16 C.J. 291.
The affidavit and warrant for arrest are considered as together constituting the precept, and if the complaint shows on its face that the justice of the peace who signed the warrant of arrest had no jurisdiction or authority to issue it the warrant is defective and void.
2 R.C.L. 460.
The affidavit upon which a warrant is issued should present the facts with such clearness that they may be understood by the party who is to answer them, and by the court and jury.
2 R.C.L. 461.
An affidavit charging an offense for which defendant is put on trial before a justice of the peace is essential to his jurisdiction also circuit court on appeal.
Morris v. State, 118 Miss. 605, 79 So. 811; Section 26, Constitution of Mississippi; 16 C.J. 294; Thompson v. State, 51 Miss. 353; Riley v. State, 43 Miss. 397; Williams v. State, 42 Miss. 328; Newcomb v. State, 37 Miss. 383; State v. Rodgers, 29 So. 73; Walton v. State, 64 Miss. 207, 8 So. 171; Brown v. State, 103 Miss. 664, 60 So. 727.
The affidavit under Section 26 of the Constitution must state the facts which constitute the offense.
16 C.J. 295; Hartness v. State, 95 Miss. 506, 48 So. 294.
An affidavit in a justice of the peace court charging "disturbing peace" is wholly insufficient to make as a charge of the commission of a misdemeanor.
Walton v. State, 64 Miss. 207, 8 So. 171.
The disturbance of the peace of one person, or two persons for that matter, as individuals, is no offense against the law.
Brooks v. State, 67 Miss. 577, 7 So. 494.
The arrest of Frank Lynchard was either an entirely false arrest, or a pretext to search his person.
Every misdemeanor may, in a sense, be said to be a breach of the peace, and therefore for one to receive at the hands of the prosecution in such a case as the one here a proper accusation, it is necessary, to secure to the accused the benefit of his constitutional rights of a statement of the offense charged against him, that the facts constituting the offense be made in some detail. It is here submitted that charging that one has breached the peace generally is to charge no offense against him.
Harrington v. State, 54 Miss. 490; Jesse v. State, 28 Miss. 100; Sarah v. State, 28 Miss. 267; Finch v. State, 64 Miss. 461, 1 So. 630.
Evidence procured by an unlawful search is inadmissible.
Patterson v. State, 130 Miss. 680, 95 So. 96; Tucker v. State, 128 Miss. 211, 90 So. 845; Cofer v. State, 118 So. 613, 152 Miss. 761; Iupe v. State, 105 So. 520; Duckworth v. Taylorsville, 142 Miss. 440, 107 So. 666; Tolliver v. State, 98 So. 342; Cofer v. State, 152 Miss. 761, 118 So. 613.
It may be said that the appellant admitted the possession in the hearing of the motion to quash. This is true, but all of this was just after the officers had forced it from his person, in the manner set forth herein, after it was already in official hands.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
In the circuit court appellant moved to quash the affidavit charging him with the unlawful possession of liquor upon the ground, in substance, that he was not under a lawful arrest at the time the liquor was found and hence the evidence of his possession of liquor, under the circumstances, would be incompetent and inadmissible.
Stripping the argument of all the fanciful and high-sounding verbiage, this motion was designed merely to test the competency of the evidence which the state expected to use against appellant in his trial. The court could have properly overruled this motion to begin with because it was not required to preliminarily inquire into the competency of the evidence until it was offered at the trial.
Holmes v. State, 146 Miss. 451, 111 So. 860; Owens v. State, 152 So. 651.
However, the court heard testimony in support of the motion. At this hearing the appellant himself testified with reference to the search that was made of his person and admitted that he had the liquor on his person just exactly as the officers said he did.
Had the trial on its merits been under way and a preliminary inquiry were had to determine the competency of this evidence, this testimony of the defendant in which he admitted the possession of the liquor would have brought the case within the well established rule that where the defendant testifies and admits facts revealed by an unlawful search, he cannot complain of evidence produced by the state which came as the result of such unlawful search.
Bowman v. State, 152 Miss. 195, 119 So. 176; Smith v. State, 166 Miss. 893, 144 So. 471; Blowe v. State, 130 Miss. 112; Clayton v. State, 131 So. 648; Millette v. State, 167 Miss. 172, 148 So. 788; Goodman v. State, 158 Miss. 269, 130 So. 285; Prine v. State, 158 Miss. 435, 130 So. 687.
However, it appears to the writer that this same rule should apply where the competency of the evidence is inquired into in advance of the trial. This case serves to illustrate that it would be a pure and simple trifling with justice to allow an individual to come into court and make a full and complete judicial confession of guilt to the offense charged and then be heard to say that such evidence could not be used against him, because it had been unlawfully obtained.
On the other hand, we submit that when process is directed by a court of competent jurisdiction to an officer charged by law with the duty of executing its processes, such officer has a right to act on the warrant without going into court and there determining for himself whether or not the affidavit on which such warrant was issued was a good and valid affidavit and properly charged an offense of which such court had jurisdiction.
A warrant of arrest issued on an affidavit charging or attempting to charge an offense is not required to specify all of the elements of the offense.
Upon a search made of the person of the appellant by the Sheriff of Humphreys County an assortment of intoxicating liquor was found concealed beneath his coat and shirt, and for the possession of which he was later tried, convicted and sentenced to pay a fine of $150 and serve a term of three months in the county jail. At the time of the search, the appellant had been taken into custody on a warrant issued by a justice of the peace for his arrest for "disturbing peace," and based on an affidavit made against him by the sheriff in which it was charged that he disturbed "the peace in the City of Belzoni, Mississippi." The question of whether the evidence as to the possession of intoxicating liquors was admissible on the trial of that charge depends on whether or not the appellant was under lawful arrest at the time of the search of his person, since there is no authority for searching one's person under any other circumstances.
Where some offense known to the law has been committed, or is said to have been committed, and the affidavit is merely insufficient to charge such offense against the accused, an officer may lawfully execute a warrant for his arrest without being required to inquire into the the sufficiency of such affidavit. More frequently the affidavit is made by a third person and the sheriff is not advised as to whether it charges an offense known to the law. However, where, as in the case at bar, no contention is made that the sheriff who made the affidavit had information that the appellant had disturbed the peace of a family or had committed any other offense punishable by law, but had merely been informed, as disclosed by his testimony, that appellant had disturbed two persons not named in the affidavit, and where it was not revealed as to how they had been disturbed or by what conduct on the part of the appellant, we do not think that the arrest was lawful. We must assume that the sheriff, as chief law enforcing officer of the county, knew that a general charge of having disturbed the peace in the City of Belzoni is not punishable as a crime. If a person may be thus accused in general terms and taken into custody with authority to search his person by the officer making the charge, then the constitutional guarantee against such unlawful searches would be rendered impotent as a safeguard of the rights and liberties of a citizen.
The evidence obtained by the search was duly objected to on the trial, and the objection was renewed by motion on behalf of the appellant for a peremptory instruction. The instruction should have been granted.
Reversed and judgment here for the appellant.