Opinion
No. 38039.
January 14, 1952.
1. Searches and seizures — landlines — intoxicating liquor.
When under a warrant to search for intoxicating liquor "in the yard and garden and in the field and woods near the residence of" the accused, naming him, such liquor was found in a small field connected with his yard and residence, it was not necessary that the witnesses should have been able to locate the landlines of the property.
2. Searches and seizures — Sunday.
Search warrants are emergency processes and may be validly issued on Sunday.
3. Trial — witnesses — cross-examination — racial issue.
Cross-examination of accused by district attorney in pressing him to know if he was disputing certain testimony given by the officers, who were white men, does not inject the racial issue into the case, even though the accused is a Negro.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Greene County; JESSE H. GRAHAM, Judge.
Ben Stevens, Jesse M. Byrd and L. Barrett Jones, for appellant.
I. The court erred in admitting in evidence for the State the affidavit for the search warrant, and the search warrant, issued against this appellant.
It was error, we submit, for the court to admit the affidavit for the search warrant, and the search warrant, issued against the appellant in this case, because the affidavit for the warrant was made on a Sunday and the search warrant issued on a Sunday by a justice of the peace.
We know of no law which authorizes a justice of the peace to perform any function of his office on a Sunday, and we have looked in vain for any statutory authority that authorizes the taking of an affidavit for a search warrant on Sunday, or the issuance of a search warrant on Sunday.
The issuance of a search warrant is a judicial act, and in this very case the search warrant contains, on its face, findings of a judicial nature. We quote from the warrant, page 8, et seq., the following: "And the undersigned having examined and considered said affidavit, and also after having heard and considered evidence in support thereof, doth find that probable cause for the issuance of a search warrant in the premises doth exist."
We repeat that we know of no statutory authority that warrants a justice of the peace to hold any court on a Sunday, or to do any judicial act on a Sunday, or to take an affidavit on a Sunday in any sort of case.
Moreover, no court of the State of Mississippi is authorized to sit on Sunday for the commencement of a trial or the commencement of any other proceeding before it, except that by the terms of Sec. 1657 Code 1942 the judges of the Supreme Court and circuit courts and chancellors of the chancery court may issue, on Sunday, certain emergency and remedial writs named therein, and those writs may also, by the express terms of that statute, be served on Sunday. It is to be noted, however, that a search warrant is not listed among the writs which may be issued under the provisions of that section.
The validity of the whole proceeding in this cause, of necessity, depends upon the validity of the affidavit for the search warrant and the validity of the search warrant. We submit that both were utterly void, because issued on Sunday, and that the subsequent search of the premises occupied by appellant, and his subsequent arrest under the void warrant, were also void.
II. The court erred in refusing to sustain defendant's objections to questions propounded to the defendant by the district attorney, and which questions were highly prejudicial and inflammatory and which tended to incite racial prejudice, contrary to the rights guaranteed the defendant by the fifth and fourteenth amendments to the Constitution of the United States of America and also erred in refusing to enter a mistrial because of these questions.
We submit that there is no doubt that the question propounded to the defendant by the district attorney, as shown by pages 96, 97, 98 and 99 of the record were calculated to and intended to create racial prejudice in the minds of the jury. The district attorney realized that he had a woefully weak case, taken at its best, and, of course, knew that about the best way to draw a verdict of guilty against a Negro by a white jury was to create in the minds of the jury that the Negro defendant was calling white men, to wit, the sheriff and his deputies, liars.
The appeal to racial prejudice, even in a whiskey case, has been condemned by this Court. See Moseley v. State, 127 Miss. 854, 73 So. 791, and the Court has, in the following cases, condemned the injection of racial prejudices in the trial of a case: Collins v. State, 100 Miss. 435, 56 So. 527; Hardaway v. State, 99 Miss. 223, 54 So. 833, Ann. Cas. 1913d 1166; Funches v. State, 125 Miss. 140, 87 So. 487; Herrin v. State, 201 Miss. 595, 29 So.2d 452; Harris v. State, 46 So.2d 91.
We realize that the cases cited were cases in which the racial issue was injected by argument of the district attorney, but the fact remains that the same racial prejudice can be as effectively injected into a case by the questioning of the district attorney, either of the defendant or of any witness, and the poison goes as deep in one instance as it does in the other, and that is especially true where the objections of the defendant to the line of questioning is overruled by the court.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
Sec. 1657 Code 1942 authorizes the issuance and serving of all remedial processes on Sunday. The concluding clause of this section is, "and all such process or writs may be granted, issued and executed on Sunday". I submit that a search warrant is a remedial writ within the provisions of this section. It is remedial because it enables the officers of the law by making proper affidavit to search for and seize stolen property, or any property that is contraband, so that the property may be recovered by the owner and the crime established before the evidences of crime are removed. Otherwise it would enable the thief or transporter of intoxicating liquors to entirely escape the jurisdiction and prevent prosecution.
Counsel seem to have the idea that because a justice of the peace issued the search warrant and took the affidavit it did not come within the statute, but a justice of the peace is a constitutional officer, having full jurisdiction over certain subjects named, embracing all civil matters not in excess of $200, and the jurisdiction of all misdemeanors whatsoever, and as an incident of his jurisdiction he has the power to issue appropriate writs to search for and seize property authorized by law, and this Court has uniformly upheld his power to issue search warrants.
Counsel contend that the court committed reversible error in admitting testimony shown on pages 96-99 of the record, in permitting the district attorney to prejudice the jury by injecting the race question in the trial. I submit that when these pages are examined it will be found that the district attorney did not inject the race question at all, but that counsel for appellant made the only statements that could be construed as referring to the races. Counsel cannot inject into a case any matter that is prejudicial and then complain of it.
The appellant, Woodie Winborn, was convicted of the unlawful possession of intoxicating liquors. (Hn 1) Most of the liquor was found in a "patch" or small field connected with his yard and residence. The search warrant, pursuant to which the search of the premises was made, authorized the search "* * * in the yard and garden and in the field and woods near the residence of Woodie Winborn * * * (the property of Sofie Coleman)". The proof was ample to warrant the jury in finding that the liquor was found on the premises referred to in the search warrant and in the affidavit therefor. Both the defendant and his wife testified that he lived on the premises where the search was made, and it was not necessary that the searching officers should have been able to testify as to the location of the landlines of the Sofie Coleman place, since their testimony was ample to show that the whiskey was found in the enclosed patch or field connected with his yard and residence.
But it is contended here that the search warrant was invalid because issued on Sunday. The affidavit, search warrant and the liquor were introduced in evidence without objection on the part of the defendant being made on the ground above stated. The only objection thereto was made on the ground that the officers had not clearly identified the premises searched by them as being the same as those described in the affidavit and search warrant. Moreover, it was held in the case of Armstrong v. State, 195 Miss. 300, 15 So.2d 438, that (Hn 2) the fact of a search warrant being issued on Sunday does not render it invalid in the absence of a statute expressly prohibiting its issuance on Sunday. To the same effect is 47 Am. Jur., page 520, par. 30, and State v. Conwell, 96 Me. 172, 51 A. 873, 90 Am. St. Rep. 333. And it was held in the case of United States v. Harbin, D.C., 27 F.2d 892, that search warrants are emergency processes, the effectiveness of which should not be crippled by prohibiting their issuance on Sunday.
One Jesse Dubose resided in the same residence that was occupied by the appellant and his wife, but Dubose in testifying as a witness for the defendant disclaimed any ownership or control over the liquor and the jury, therefore, found from all the facts and circumstances that the same was in the possession or under the control of the appellant.
(Hn 3) The Court is unable to agree that the cross-examination of the defendant by the District Attorney had the effect of injecting the racial issue into the case to his prejudice when he elicited from the defendant the fact that he was disputing the testimony of the officers. The jury necessarily observed that the officers were white men and that the defendant was a Negro. The District Attorney made no reference to the color of any of the witnesses or of the defendant in his cross-examination, but rather the prominence given to the fact that the state witnesses were white and the defendant was a colored man is found in the objections made on behalf of the defendant when the District Attorney was asking him if he was denying what the officers had testified that he told them on the occasion of the search in regard to it being his liquor, and that they had found all that he had there.
We find no error in the record that would justify a reversal of the case and the judgment and sentence appealed from must therefore be affirmed.
Affirmed.