Adams v. State

• Decision Date: 19 May 1947
• Docket Number: 36372.
• Court: Mississippi Supreme Court
• Parties: ADAMS v. STATE.

30 So.2d 593

202 Miss. 68

ADAMS v. STATE.

No. 36372.

Supreme Court of Mississippi

May 19, 1947

[Copyrighted Material Omitted]

Wall & Allen, of Brookhaven, for appellant.

Greek L. Rice, Atty. Gen., and Geo. H. Ethridge Asst. Atty. Gen., for appellee.

L. A SMITH, SR., Justice.

The district attorney appeared before a justice of the peace in Lincoln County, and on his affidavit obtained a search warrant, properly addressed to any lawful officer of Lincoln County, authorizing the search of appellant's home in the City of Brookhaven, and her arrest, on the allegation that therein she possessed and sold intoxicating liquor in violation of law. On the evidence obtained, she was convicted on an indictment charging such possession.

Armed with this search warrant, and a copy thereof, the district attorney sought and obtained the company of a deputy sheriff, to whom he gave only the copy, retaining the original himself. Thereupon, he, accompanied by the deputy raided the premises of Minnie Adams, the appellant. On the trial of the case, the district attorney introduced the deputy and himself as the sole witnesses for the State. We quote from the testimony of the district attorney: 'As we pulled up in the yard, come right out of the alley and parked out there, Minnie looked out the door and ran back in the house. Mr. Brueck jumped out of the car and run in front of the car and started around one way. I heard the commotion in there as I was leaving the car and I ran down side of the car to the side door. I could hear the bottles, jugs and everything else breaking and rattling in there before I got to the door. The door was latched. I ran into the door and busted it open. As I entered the room Minnie Adams had a crock or vessel throwing some stuff out the window just as Mr. Brueck went by the window.' The district attorney had substantially completed the search, and located both whiskey and wine before the deputy sheriff came into the house. The district attorney further testified that, about the start of the search, 'I looked over to one side and found a half gallon jug full of homemade whiskey. I made for it and grabbed it. Just as I got my hand on it Minnie hit my hand with an empty pint bottle and broke the top of that off, but we got some whiskey out of that. About that time Joe came in from around the house. * * *'

The deputy sheriff said on the witness stand he never did serve the warrant on appellant, never did tell her he had it, or read it to her. He merely laid it on a table in one of the rooms, after he came into the house. The district attorney testified he did not know what the deputy did with the warrant. He, himself, without lawful authority to serve it, never removed the original from his pocket. Just before the arrest, and after the search, the district attorney saw appellant reading the copy of the search warrant, and before that moment the deputy had already learned what he discovered as to the possession of the intoxicating liquors.

When offered on the trial in the circuit court, timely objection to the evidence, thus obtained, was made by appellant and separately heard by the court, who ruled it to be competent. When the district attorney offered himself as a witness for the State at the trial, the further objection was made to 'the district attorney testifying to all the testimony he may give.' This objection was also overruled.

Assignments of error here raise the two points, first, whether the evidence obtained on this raid was competent against appellant; second, whether the district attorney should have been permitted to testify against appellant under the circumstances.

The State relies largely on Johnson v. State, 146 Miss. 593, 111 So. 595, wherein we said that a search is not illegal because the justice of the peace, who took the affidavit and issued the warrant, participated in the search with the officers. The State also argues that appellant can take no comfort from Brashier v. State, 197 Miss. 237, 20 So.2d 65, 157 A.L.R. 311. We held there that a presiding judge could not testify while presiding at the trial. We think the issues here reach into the fundamentals of the office of the district attorney, and must be decided on that basis.

Chapter 6, Title 17, Code 1942, prescribes the duties of a district attorney. Section 3920, to appear in court and prosecute; Section 3921, to attend deliberations of grand jury; section 3922, to pass on public accounts; Section 3923, to give opinions and prosecute public debtors; Section 3924, deals with pro tempore appointments; Section 3925, see to collection of fines; and Section 3926, to institute and prosecute suits to vacate fraudulent conveyances; and Section 3927, refers to antitrust suits. No statute authorizes the district attorney to act as a peace officer. All his powers are statutory, pursuant to the direction of Section 174, Constitution 1890. The authority so conferred imports also such incidental powers as necessarily attend the discharging of statutory duties. And he has also certain other statutory auxiliary authorizations not necessary to be listed here. This officer had no common-law powers. Capitol Stagges, Inc., et al. v. State ex rel. Hewitt, District Attorney, 157 Miss. 576, 128 So. 759.

Certainly, 'The prosecuting attorney should exercise diligence in prosecuting for criminal offenses, and where he is informed that a crime has been committed, but no complaint has been made, it is his duty to inquire into the facts, but he is not required to assume the functions of a detective and undertake personally to discover the circumstances of the alleged offense. * * * He cannot control the action of the sheriff or marshal in the execution of warrants. * * * In conducting a criminal case, the prosecuting attorney must be fair and impartial, and see that defendant is not deprived of any constitutional or statutory right.' Section 42C, 18 C.J. 1314; 27 C.J.S., District and Prosecuting Attorneys, § 14. (Italics ours.) In this connection, the authorities agree that the district attorney is a quasi-judicial officer. Appeal of Nicely et al., 130 Pa. 261, 18 A. 737. In discussing this phase of the prosecuting attorney's duties, the Supreme Court of Oregon held that it is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his constitutional or statutory rights as it is to prosecute him for the crime with which he is being charged. State v. Osborne, 54 Or. 289, 103 P. 62, 20 Ann.Cas. 627.

The very nature of his functions as a prosecutor necessitates that the district attorney be a partisan in the case. Zeal in the prosecution of criminal cases is a praiseworthy and commendable trait in such an officer, and not to be condemned by anyone. A fearless and earnest prosecuting attorney, within the limitations upon his powers and prerogatives, is a bulwark to the peace, safety and happiness of the people. 'If convinced of the defendant's guilt, he should, in an honorable way, use every power that he has to secure his conviction. At the same time, it is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled, * * * It is the duty of the prosecutor to see that nothing but competent evidence is submitted to the jury; * * *.' 42 Am.Jur., Sec. 20, p. 255.

Section 23, a part of the Bill of Rights, Constitution 1890, directs that 'The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; * * *.' Violation of this constitutional guaranty by an unreasonable search is tantamount to compelling defendant to testify against himself. Fulton v. Philadelphia, 168 Miss. 30, 148 So. 346. But this section is not violated where the home and premises of a defendant were searched by his consent. Faulk v. State, 127 Miss. 894, 90 So. 481. Although a waiver of its protection is not created by the defendant neither objecting nor consenting to the search. Boyd v. State, 164 Miss. 610, 145 So. 618. The appellant here never consented to the search. In fact, she assaulted the district attorney in resisting it. In dealing with such searches, we must bear in mind that provisions for search and seizure are construed strictly against the State. Elardo v. State, 164 Miss. 628, 145 So. 615. The statutes involved are Sections 2613, 2614, 2615, 2616, Code 1942.

With these observations as prefatory, we proceed to consider further what was done in the case at bar. As stated, the district attorney retained the original search warrant giving the copy to the deputy, who, however, never read or delivered it to appellant, simply laying it on the table in a room of the house, after the district attorney had made a thorough search of the premises, complete for all practicable purposes. Only just before her arrest thereafter could appellant be...