Armstrong v. State

• Decision Date: 08 November 1943
• Docket Number: 35367.
• Citation: 195 Miss. 300,15 So.2d 438
• Court: Mississippi Supreme Court
• Parties: ARMSTRONG v. STATE.

15 So.2d 438

195 Miss. 300

ARMSTRONG v. STATE.

No. 35367.

Supreme Court of Mississippi

November 8, 1943

Martin & Farr, of Prentiss, for appellant.

Greek L. Rice, Atty. Gen., by R. O. Arrington, Asst. Atty. Gen for appellee.

GRIFFITH Justice.

Appellant was convicted upon a charge of the possession of intoxicating liquors. The evidence, upon which the conviction rests, was obtained by officers in the course of the execution of a search warrant. We will discuss briefly two contentions made by appellant in respect to that warrant, and, first, that it was invalid because issued on Sunday.

The fact that a search warrant is issued on Sunday does not render it invalid, unless expressly prohibited by statutory enactment. 47 Am.Jur. p. 520, par. 30. There is no such prohibition in any of our statutes. The question was considered in State v. Conwell, 96 Me. 172, 51 A 873, 90 Am.St.Rep. 333, and we are in accord with what was said in the first four paragraphs of that opinion as furnishing a sufficient basis for the announced conclusion.

The second contention is that the warrant was invalid, because issued solely upon the statutory affidavit, Section 1975, Code 1930, that the affiant "has reason to believe and does believe", etc. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520, and other federal cases are cited by appellant to the effect that under the Fourth Amendment to the Federal Constitution such an affidavit is insufficient-that the officer who issues the warrant must have before him the facts which justify a finding of probable cause. That this is the rule prescribing the exercise of the federal authority in such matters is beyond question, as it well ought to be as to officers who are neither selected by, nor who are in any way directly accountable to, the people.

But in Tucker v. State, 128 Miss. 211, 218, 90 So. 845, 846, 24 A.L.R. 1377, we said, citing Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann.Cas.1915C, 1177, "that the Fourth Amendment to the federal Constitution was directed alone to the exercise of federal authority and had no application to state action." The state is free, therefore, to pursue its own course of procedure under Section 23, Constitution of 1890, which is the section of our State Constitution dealing with unreasonable searches and seizures; and under it we have held, in Mai v. State, 152 Miss. 225, 233, 119 So. 177, Sykes v. State, 157 Miss. 600, 128 So. 753, Johnson v. City of Aberdeen, 170 Miss. 526, 176 So. 262, and Goss v. State, 187 Miss. 72, 192 So. 447, 448, that "as between the state and the defendant, a judicial finding of the officer issuing the warrant, of the existence of probable cause therefor, is conclusive, and therefore cannot be inquired into." We are satisfied with the soundness of the reasons as stated in the Mai case for this rule. The statutory basis for it has existed in this state for many years, and if, as a result thereof, our people have been arbitrarily dealt with, or oppressed or unreasonably treated we have not heard of it, as undoubtedly we would, had the course of events been such as to seriously raise the question.

We have carefully considered the other points presented by appellant and find no reversible error.

Affirmed.

ANDERSON Justice (dissenting).

Section 1975, Code 1930, is violative of sections 23 and 26 of our Constitution (the search and seizure and self-incrimination provisions), and the decisions of our Court in Mai v. State, 152 Miss. 225, 119 So. 177; Loeb v. State, 133 Miss. 883, 98 So. 449; Hendricks v. State, 144 Miss. 87, 109 So. 263, holding to the contrary, ought to be overruled.

The affidavit for the search warrant, and the search warrant itself, complied with section 1975 of the Code. The affidavit alleged that the affiant "has reason to believe, and does believe," that intoxicating liquor was kept and stored, etc., by the appellant. On the trial appellant objected to the introduction of the affidavit and search warrant, which objection the court overruled, and in addition offered, but was not permitted by the court, to prove that the justice of the peace issuing the warrant had nothing before him as to the guilt of the appellant except that language in the affidavit. And, furthermore, that the constable making the affidavit had no facts before him on which to base it, but only rumors and hearsay. The court, in its ruling, followed the decisions of our Court above referred to. Section 23 provides that the people shall be secure in their persons, houses and possessions from unreasonable search and seizure, and that no warrant shall be issued without probable cause, supported by oath or affirmation, designating the place, etc., to be searched. Section 26 provides, among other things, that in criminal prosecutions the accused shall not be compelled to give evidence against himself. The Search and Seizure provision of the Federal Constitution (Article 4 of the Amendments) is substantially the same as section 23 of our Constitution; and the self-incrimination clause of Article 5 of the Amendments to the Federal Constitution is substantially the same as a like clause in section 26 of our Constitution. Many other states of the Union-perhaps all of them-have substantially the same constitutional provisions.

If the decision of the issuing officer is res judicata as to probable cause, that would mean, of course, that whatever he considered probable cause would be the end of the inquiry. He could base it on hearsay or rumors. Suppose the proceeding originated through ill-will and malice on the part of the officer-would that be fore-closed, also? I think those decisions of our Court mean exactly that. In Tucker v State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377, we quoted, with approval, from what Justice Bradley said in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 534, 29 L.Ed. 746. I think it would be well to repeat what he said: "We have already noticed the intimate...