STEPHENS v. STATE

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Docket Number

No. 33425.

Attorney(S)

L.W. Brown, of Starkville, and W.L. Sims, of Columbus, for appellant. The search warrant in this case was issued upon the affidavit of the sheriff of Oktibbeha County, Mississippi. The sheriff made an affidavit as shown that he had reason to believe and did believe that intoxicating liquors were manufactured, sold, kept for sale, etc., by Terrell Steven at on Highway 82 in NE 1/4 Sec. 36-18-15 in said county and state. The search warrant calls for Section 36-19-15, etc., and the evidence shows that the sheriff searched Section 36-19-15, or the premises described in the search warrant. We submit that under Section 1975, Mississippi Code 1930, an officer has the right to search only the premises as contained in the affidavit, and in this case the officers searched premises six miles from those as described in the affidavit. That any evidence, we submit, obtained by the officer was inadmissible, and that the court should have sustained our motion to exclude the testimony. We further direct the court's attention to the affidavit and search warrant and to the description therein. We do not think that the descriptions are sufficient in law and the affidavit and search warrant are, therefore, void for indefiniteness as to the place to be searched. Spears v. State, 99 So. 361. We respectfully submit that the search warrant in this case was illegal and void; that evidence secured by virtue of said search warrant was incompetent; that the evidence in this case was insufficient to sustain the verdict of guilty; and, that this court should reverse the decision of the lower court and discharge the defendant. W.D. Conn, Jr., Assistant Attorney-General, for the State. Appellant's principal objection is that in the affidavit the township is given as No. "18," while the township number shown in the warrant is "19," such townships being located six miles apart. This court has heretofore held that the description of the premises to be searched need not be technically correct as is required in the case of conveyances of land, but any description is sufficient which will enable the officers, with reasonable certainty to locate the property proposed to be searched. This court has also said that a sufficient description is to describe the property as being occupied by a certain party in a certain county and that any other descriptive allegations may be treated as surplusage. In the case at bar, both the affidavit and the warrant describe the place to be searched as the property occupied by appellant in Oktibbeha County, Mississippi. All the balance of the description may be treated as surplusage. If this is done, then the variance occurs in the surplusage and becomes immaterial. Simmons v. State, 176 So. 726; Forshee v. State, 152 Miss. 566, 120 So. 462.

Judges

Anderson, J., delivered the opinion of the court.

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STEPHENS v. STATE.

1. SEARCHES AND SEIZURES.

Where affidavit for search warrant, neither directly or indirectly, referred to storehouse as place to be searched and search warrant described premises to be searched as a storehouse, variance between affidavit and search warrant was fatal.

2. CRIMINAL LAW.

Where affidavit for search warrant did not designate storehouse as place to be searched and search warrant described storehouse as place to be searched, evidence obtained under search warrant was inadmissible, since fatal variance existed between the affidavit for search warrant and the search warrant.

Anderson, J., delivered the opinion of the court.

Appellant was convicted in the Circuit Court of Oktibbeha County of the crime of the unlawful possession of intoxicating liquor. The evidence upon which the conviction was had was secured by a search of his storehouse and the lot on which it was situated. There the liquor was found. Appellant objected to the introduction of the evidence on the ground of fatal variance between the affidavit for the search warrant and the search warrant itself. In the affidavit for the search warrant, the place and things to be searched were described as follows: "the dwelling house, outhouses, upon the premises, in the automobiles and other vehicles used and occupied by, and on the person of Terrel Stevens on Hwy. 82 in NE 1/4 Sec. 36 — 18 — 15 in said county and State." In the search warrant, there was the following description: "the residence, outhouses, barns, stalls, smokehouses, crib, and in the yard and garden, and in the field and woods near the place of Terrel Stevens in the 2nd district of said Oktibbeha County and on Section 36, Township 19, Range 15, in said county, and more particularly described as follows: Store or place operated by Terrel Stevens located in or on W 1/2 NE 1/4 Sec. 36 — 19 — 15 land assessed to Johnson Kenneday." (Italics ours.) The affidavit neither in specific nor in general terms describes the storehouse. There is nothing in it pointing directly or indirectly to a storehouse as the place to be searched. In the search warrant, however, in unmistakable terms the storehouse is pointed out as the place to be searched. The variance between the affidavit and the search warrant was fatal. We leave out of consideration the variance between the township described in the affidavit, and that described in the search warrant. The view we take renders it unnecessary to pass on the effect of that variance. Crosby v. State, 144 Miss. 401, 110 So. 122; Morton v. State, 136 Miss. 284, 101 So. 379.

The result here is the Court should have excluded the evidence and directed a verdict of not guilty.

Reversed and judgment here for appellant.

STEPHENS v. STATE.

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