CARR ET AL. v. STATE

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Docket Number

No. 33696.

Attorney(S)

R.W. Boydstun, of Louisville, for appellants. The first instruction given for the state in trial court does not state the law applicable to this case. The information upon which the sheriff acted in this instance did not come from "A creditable person", as referred to in former opinions of this court. The sheriff had the information from Mr. Griff Thompson. Mr. Griff Thompson was a deputy sheriff and one of the arresting officers. This entire record shows that Mr. Griff Thompson had often been deputized by the sheriff and was in fact a regular hanger-on about the sheriff's office. After he got out and obtained information he was then deputized by the sheriff to assist in making raids, arrest, and other things. To allow a man acting in that relation to come into court and testify as an individual is too palpable subversion and evasion of the rights of individuals to be allowed in a court of justice. This places a premium upon "stooges" and allows a violation of the spirit of the law which is intended to be observed by officers. At a time when it is well known to the bench and bar of this state that the illegal sale of whiskey and many kindred violations of law is conducted in many instances with police sanction and protection we think it very necessary that the acts of officials be held within legal bounds. The trial court certainly committed manifest error in receiving verdict of guilty and entering judgment of conviction against Carl Carr under the conditions in this record. The sheriff had information upon which he secured a search warrant for the car, and after being armed with a search warrant made no attempt to serve the search warrant and proceeded to place both of appellants in jail, and after they were in jail carried the search warrant to the jail and served same. This was too late. W.D. Conn, Jr., Assistant Attorney-General, for appellee. In view of the fact that an affidavit for search warrant was made and a search warrant was procured and no objection at the trial was made to the introduction of evidence revealed by the search until the affidavit and search warrant were produced forecloses any dispute upon the matter of probable cause. Boyd v. State, 164 Miss. 610, 145 So. 618; Pickle v. State, 151 Miss. 549, 118 So. 625; Cuevas v. City, 134 Miss. 644, 99 So. 503; King v. State, 147 Miss. 31, 113 So. 173. Since the evidence shows that a search warrant was issued on an affidavit therefor and the sheriff attempted to act under the warrant and not on bare probable cause, we think that the issuance of the search warrant by the justice of the peace was an adjudication of probable cause and cannot be collaterally inquired into. Mai v. State, 152 Miss. 225, 119 So. 177; Sykes v. State, 157 Miss. 600, 128 So. 753; Castellucio v. State, 165 Miss. 516, 146 So. 599. The evidence shows that at the time of the search the sheriff had a search warrant and so advised appellants, although he did not, at that time, present them with a copy of it. Under the circumstances, the failure of the sheriff to give appellants a copy of the search warrant would not affect the validity of the search. Forshee v. State, 152 Miss. 566, 120 So. 462; Dunn v. State (Miss.), 146 So. 448; Dow v. State (Miss.), 157 So. 342.

Judges

Smith, C.J., delivered the opinion of the court.

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CARR et al. v. STATE.

1. CRIMINAL LAW.

In prosecution for unlawfully transporting liquor, where no objection to evidence obtained by search was made on ground that affidavit and warrant were not produced, failure of state to introduce affidavit and warrant was waived.

2. CRIMINAL LAW.

The issuing of a search warrant on affidavit made by sheriff was res judicata on its sufficiency and could not be inquired into in prosecution for unlawfully transporting liquor, wherein evidence obtained by search was offered.

3. CRIMINAL LAW.

That sheriff failed to inform accused of warrant in sheriff's possession before searching accused's automobile for liquor did not affect admissibility of evidence obtained by search.

4. INTOXICATING LIQUORS.

Testimony of accused disclosed his guilt of unlawfully transporting intoxicating liquor.

5. INTOXICATING LIQUORS.

Whether accused was guilty of unlawfully transporting intoxicating liquor was a jury question.

Smith, C.J., delivered the opinion of the court.

The appellants were convicted for transporting intoxicating liquor. Their main complaint is that the State's evidence was obtained by an unlawful search of an automobile. The sheriff of the county was informed by another, who had also gotten his information from another, that the appellants would transport intoxicating liquor through the county on a certain day in an automobile, the license tag number of which was given the sheriff. Acting on this information, the sheriff watched for and stopped the automobile and found some cases of intoxicating liquor therein. After testifying that he acted on the information given him in searching the automobile, he stated that he had made an affidavit for a search warrant before a justice of the peace, whereupon the district attorney said that was not necessary if "you had credible information." Afterwards, more particularly on cross-examination, he testified fully as to having obtained the warrant for searching the car and having it with him at the time he made the search, though he did not then inform the appellants thereof. The warrant was not introduced in evidence and the sheriff said that he had made his return thereon and delivered it to the justice of the peace. No objection to the evidence was made on the ground that the affidavit and warrant were not produced. This being true, the failure of the State to introduce the affidavit and warrant in evidence was waived and cannot now be assigned for error. But the appellants say that the information which the sheriff had did not amount to probable cause for the reason that he knew that his informant was acting on hearsay, and not on his own knowledge. The issuing of a search warrant on the affidavit made by the sheriff is res adjudicata of its sufficiency and cannot be here inquired into. That the sheriff failed to inform the appellants of the warrant before searching the automobile does not affect the admissibility of the evidence obtained by him thereunder. Forshee v. State, 152 Miss. 566, 120 So. 462.

The appellants' complaints, based on the assumption that the search of the automobile was made without a warrant therefor, disappears in the light of the foregoing.

The testimony of Carl Carr discloses guilt on his part, and whether R.M. Carr was also guilty was, on the evidence, for the determination of the jury.

Affirmed.

CARR et al. v. STATE.

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