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MOONEY v. STATE

Supreme Court of Mississippi, Division B.

Jun 8, 1931

Judgment

Subsequent
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Case Information

CITATION CODES

citation codes

DOCKET NO.

No. 29474.

Attorney(S)

W.T. Weir, of Walnut Grove, for appellant. The search by the officers was void for the reason that it had in reality been begun by E. Harrell the special deputy who informed the regular deputy and who afterwards obtained a search warrant. Robinson v. State, 101 So. Rep. 706. We further submit that the search warrant is defective in that it is not made returnable before any officer authorized to dispose of the matter. True it does state, and if practicable bring them before E.B. Jackson at his office on the 20th day of August, 1930, but it does not state that E.P. Jackson was any lawful officer neither does it state that he is an officer of any description. If the above is legal we would presume that a search warrant made by one justice of the peace could make it returnable before any private citizen and thus private citizens would be evidently clothed with authority to pass upon the legality of the proceedings, a situation clearly not intended either by the constitution or statute law. 16 C.J. 303. The testimony is not sufficient to show that appellant had any connection or ever possessed any of the liquors. The evidence at least ought to be shown by competent testimony that the defendant possessed the liquor and it ought not to be presumed until proven beyond a reasonable doubt. 33 C.J., page 744; Moree v. State, 130 Miss. 341, 94 So. 226; McGuire v. State, 21 Miss. 257; Medlin v. State, 108 So. 177. E.B. Ethridge, Special Agent, for the state. The search of appellant's premises fulfilled the requirements of law, and the evidence obtained by the officers during the search is, therefore, admissible. The affidavit was made by deputy sheriff Scrivener who swore that he had reason to believe and did believe that intoxicating liquor was being unlawfully possessed by appellant. This affidavit, together with the search warrant issued on same, was made a part of the record at the trial of appellant. With this authority, it was shown that the officers went to the premises described in the search warrant and there searched and found intoxicating liquor. Section 1975 of the Code of 1930; Bufkin v. State, 134 Miss. 1. It is not required that affiant disclose source of information. Loeb v. State, 98 So. 449, 451; Bufkin v. State, 98 So. 452; Moore v. State, 138 Miss. 116, 156. The search warrant was not defective. Beal v. State, 108 Miss. 524; Jones on Evidence, sec. 109; 7 Ency. Ev. 979; 16 Cyc. 913; Coleman v. Gordon, 16 So. 340; Lindsey v. Attorney General, 33 Miss. 528; Russell v. Ry. Light Power Company, 137 Ala. 627, 34 So. 855; Casey v. Bryce, 173 Ala. 129, 55 So. 810.

JUDGES

Ethridge, P.J., delivered the opinion of the court.

ACTS

No Acts

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Important Paras

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1. INTOXICATING LIQUORS. Description of premises in affidavit and search warrant held sufficient.

A description of premises to be searched in an affidavit and search warrant thereon, which describes the place to be searched as a dwelling house, outhouses, premises, automobiles, and other vehicles of a named party, describing the premises as being two miles southwest of a given point in the county, is not void for uncertainty of description of the premises to be searched.

2. SEARCHES AND SEIZURES. Failure of search warrant to state person to whom warrant was made returnable was justice of peace held not to invalidate warrant, where such person was in fact such and prosecution was had before him.

In making a search warrant returnable to a named person at his office in a certain district and county, and such person is in fact a justice of the peace, and the prosecution for the offense discovered by the evidence is begun in the court of the said justice of the peace, the search warrant is not void for failure to state that the named person is in fact a justice of the peace.

Ethridge, P.J., delivered the opinion of the court.

Ben Mooney was prosecuted for the unlawful possession of intoxicating liquor in a justice of the peace court, convicted there, and appealed to the circuit court, where a trial de novo was had, and he was again convicted and sentenced to pay a fine of one hundred dollars.

The evidence against Mooney, the appellant, was obtained by means of a search warrant issued by a justice of the peace of district No. 2 in Leake county, and made returnable to a named person, to-wit, E.P. Jackson, at his office, on the 20th day of August, 1930. E.P. Jackson was, in fact, a justice of the peace of district No. 1, and was the justice of the peace before whom the prosecution for the unlawful possession was to be had, although the affidavit for the search warrant did not state that he was a justice of the peace.

The description of the place to be searched was the "dwelling, outhouse, premises, automobiles, or other vehicles of the said Ben Mooney," in said county and state. The liquor was found on the morning following the issuance of the search warrant by some deputy sheriffs and constable of district No. 1, who went upon adjoining lands and secreted themselves, and, shortly after daylight, Mooney came near where they were secreted in a small ravine, and the officers heard bottles rattling and saw Mooney, and, after he left and returned to his house, they went to the place where he was seen, and there in the ravine was a sack of bottles containing home-brew. They also found another sack of bottles on the defendant's premises, and thereupon they went to his house, served the warrant upon Mooney, took him to the place where the bottles were, and took possession of the bottles and of Mooney.

The proof showed that the home-brew was intoxicating, and that Mooney was served with a warrant and placed under arrest, and also that the premises of Mooney were in district No. 1 of Leake county; but there was no evidence in the circuit court on behalf of the appellant, who rested on the state's case. The state's evidence, when offered, was objected to, objection overruled, and exception taken.

It is urged here that the affidavit was insufficient as to the description of the place to be searched, and also because the writ was made returnable before E.P. Jackson, without showing on its face that he was a justice of the peace.

We think the proof is sufficient to sustain a conviction; that the description of the premises to be searched was sufficient; and the fact that the writ for the search warrant was returnable to E.P. Jackson, without designating him as a justice of the peace, it having been served upon Mooney in the district in which he lived, does not render the evidence so obtained incompetent.

The judgment of the court below will therefore be affirmed.

Affirmed.