HEGWOOD v. STATE

T.J. Wills and J.L. Thompson, for appellant.

When a man is unable to attend court disposition of a case pending against him should not be made to his disadvantage. We cite the recent case of Jones v. State, 204 Miss. 284, 37 So.2d 511.

When the motion was interposed it was the duty of the court to have examined the record before it entered an order dismissing it. Had an examination of the record been made this is what he would have found: The search warrant was void in that the affidavit did not comply with Sections 2614 and 2616 of the Code of 1942.

The affidavit appears on page 5 of the record and fails to set out that the affiant was a credible person. This was not sufficient to support a legal search warrant. We rely on Turfitt v. State, 42 So.2d 737.

The founders of our government and the makers of our constitution have not been content to permit a search warrant to issue upon the affidavit of any person who will say that he has to believe and does believe that crime is being committed on another's property, unless the affidavit shows that the affiant is known to be a credible person. If he is not credible then his affidavit is perjury. This prevents the staggering scalawags from having a search warrant issued against our best citizens and the humiliation that would follow in the wake thereof. 202 Miss. 68, 30 2d 593.

We call the court's attention to the copy of the judgment of the justice of the peace. This judgment does not and nowhere does the judgment say that the appellant was guilty. The court's finding that the defendant appellant is under sub-section (b) Sec. 2613 Code 1942 does not give the circuit court jurisdiction. The judgment does not find the appellant guilty or not guilty; the case is still a pending case in the justice court. The only way it can be disposed of is by entering a judgment of guilty or a judgment of not guilty, which the justice court failed to do.

The circuit court could have not got jurisdiction unless the case was finally disposed of in the justice court. It was the circuit court's duty to remand the case to the justice court with instructions for it to be finally disposed of there.

George H. Ethridge, Assistant Attorney General, for appellee.

It is insisted in the brief of appellant that the search warrant was void because it did not recite that the affiant, sheriff of the county, was a credible person and insisted that Sections 2614 and 2616 make it essential to the validity of the affidavit for search warrant that these recitals be contained in the affidavit and search warrant. There are two answers to this contention. First that the affidavit for the search warrant and the search warrant with the officer's return thereon are mere evidentiary matters and may or may not have been introduced on the trial in the justice court. The justice court is not required to certify to the circuit court on appeal any matters of evidence. The trial in a circuit court is de novo and there was no trial in this case on the merits; and the appellant totally failed to prosecute with effect his appeal. Procedendo was a proper proceeding under the circumstances. The court should not consider nor decide anything in this case with reference to the search warrant and affidavit upon which it was founded and the officer's return on the search warrant. These might not have been introduced at all. The offense could have been established by witnesses who had bought liquor from appellant or had seen appellant in possession of liquor.

Secondly Section 2614, reciting — "Upon the affidavit of any credible person" does not require an affidavit to recite that the person is a credible person. What it requires is that the justice of the peace issuing the search warrant shall be satisfied that the affiant is a credible person. The word "credible" as used therein means "worthy of belief", as distinguished from a mere competent witness. The recitals in the search warrant under Section 2611 containing the form of the writ are directory merely and not mandatory. The constitution under Section 23 does not contain this requirement either in the affidavit or the warrant itself. The legislature has not made either mandatory but has placed them in the statute merely for the guidance of officers, and if a credible person appeared before the officer to make an affidavit and the officer is satisfied of the credibility of such person, his issuance of the warrant is the finding that the affiant is a credible person and forecloses for the purpose of use the search warrant the legality of the affidavit and recitals in the search warrant itself would not add anything to the fact that the person was known by the justice to be a credible person. With due deference to counsel, I submit that they do not make a showing of error in the circuit court in dismissing the appeal with procedendo. Counsel cites Corbin v. State, 99 Miss. 486, 55 So. 43 and Jones v. State, 204 Miss. 254, 37 So.2d 511, and I submit that neither of these cases are in point here. In those cases, a showing was made that the appellant was actually unable to present himself at the trial on account of sickness and proof was made in each case showing the nature and extent of the sickness making it impossible for the appellant to be present at his trial and to give testimony as a witness. In the present case there was no showing that appellant was actually sick and unable to attend the trial but so far as the record shows no one knew where he was or what his condition was and the comments of the trial judge are very illuminating in this aspect of the case.

Counsel cites Adams v. State, 202 Miss. 68, 30 So.2d 593. This case does not seem to have any place in the discussion or decision of the present case. If a person convicted in a justice or mayor's court can take an appeal to the circuit court or to the county court and then absent himself and not explain where he is nor why he did not appear and have the case reinstated on mere speculation of a most doubtful character and then go on and on and on under similar contentions the law will be entirely thwarted, justice defeated and trifling of the courts promoted.