Banks v. City of Jackson
| Decision Date | 14 January 1929 |
| Docket Number | 27563 |
| Citation | 152 Miss. 844,120 So. 209 |
| Court | Mississippi Supreme Court |
| Parties | BANKS v. CITY OF JACKSON. [*] |
Suggestion of Error Overruled Feb. 25, 1929.
APPEAL from circuit court of Hinds county, First district., HON. W H. POTTER, Judge.
Cora Banks was convicted of possession intoxicating liquor, and she appeals. Affirmed.
Judgment affirmed.
George L. Teat, for appellant.
Morse & Bryan, Louis M. Jiggitts and Powell, Harper & Jiggitts, amici curiae.
Argued orally by G. L. Teat for appellant and Harry M. Bryan, for appellee.
The appellant, Cora Banks, was convicted in the police court of the city of Jackson of unlawfully having in her possession intoxicating liquor; and from this conviction and the sentence imposed, she appealed to the county court, where she was again convicted, and was sentenced to pay a fine of one hundred dollars and to serve a term of thirty days in the city jail. She thereupon appealed to the circuit court. Upon the hearing of the cause in the circuit court, the judgment of the county court was affirmed, and from this judgment of affirmance this appeal was prosecuted.
The evidence on which the conviction is based was procured by means of a search of certain premises in the city of Jackson under the authority of a search warrant issued upon the affidavit of the officer who made the search. At the trial in the county court, this affidavit and search warrant were offered in evidence, and the appellant objected to the introduction of the same, as well as any evidence secured by means of a search conducted under the authority of such warrant on the ground that the affidavit for the search warrant was fatally defective, and that the warrant was, therefore, void. This objection was overruled, and the affidavit and search warrant admitted in evidence.
The several assignments of error argued by counsel for appellant are based upon alleged defects in the affidavit for the search warrant; this affidavit, omitting the formal parts, being in the following language:
Affiant "has reason to believe and does believe, that intoxicating liquors are being manufactured, possessed, sold or offered for sale, or given away, in violation of law, in the dwelling house, outhouses, upon the premises, in the automobile or other vehicles used or occupied by, and on the person of Unknown Occupant at 123 West Griffith street in the city of Jackson, in said county and state, and this belief is not feigned of malice against the said unknown occupant, but is founded on creditable information in that affiant has been informed by a credible person that such is a fact.
"Wherefore, affiant prays a search warrant directing a search of said dwelling, outhouses, premises, automobiles or other vehicles and the person of the said party or parties and premises above named and described, and the seizure of said liquors, vessels and appliances used in connection therewith and the arrest of the said unknown occupant, or such other party or parties as may be in possession or control thereof."
The first assignment argued by counsel is that the affidavit fails to allege that the intoxicating liquor possessed by the unknown occupant of the premises therein described was possessed "for the purposes of sale in violation of the laws of the state of Mississippi." The contention and argument of counsel on this point is based on the fact that section 1 of chapter 244, Laws of 1924 (section 2238, Hemingway's 1927 Code) provides that a search warrant shall be issued upon the affidavit of any credible person that he has reason to believe and does believe that "intoxicating liquor is being stored, kept, owned, controlled, or possessed in any building or room in a building, . . . for purposes of sale in violation of the laws of the state of Mississippi." Paragraph 2 of section 1 of this act provides for the issuance of a warrant upon an affidavit that "intoxicating liquor is being sold, or offered for sale, in violation of law," while paragraph 3 of section 1 provides for the issuance of such a warrant upon an affidavit "that intoxicating liquor is being manufactured or distilled or attempted to be manufactured or distilled in any building, or room in a building, or outhouses, or on any place in violation of the laws of the state of Mississippi."
The affidavit in the case at bar combines in one allegation the charge that the affiant had reason to believe, and did believe, that intoxicating liquor was being manufactured, possessed, sold, or offered for sale, in violation of law. In this affidavit the phrase, "in violation of law," refers to and modifies each of the words "manufactured," "possessed," and "sold or offered for sale," but in so far as the affidavit avers possession of intoxicating liquor by the unknown occupant of the premises therein described, it fails to allege in the language of the statute that such liquor is possessed on said premises for the purposes of sale. It will be unnecessary to now express any opinion as to whether the omission of the words, "for the purposes of sale," would invalidate an affidavit alleging the possession of intoxicating liquor in violation of law, for the reason that the affidavit here involved alleged that intoxicating liquors were being sold or offered for sale, in violation of law, on the said premises. This averment is in the exact language of paragraph 2 of section 1 of said chapter 244, Laws of 1924 (section 2238, Hemingway's 1927 Code), and was sufficient to authorize and require the issuance of a warrant for the search of the premises.
The appellant next contends that the affidavit is fatally defective for the reason that it does not affirmatively state any of the statutory grounds for the issuance of a search warrant, but attempts to join several grounds disjunctively, and in support of this contention relies on the decisions of this court that in an affidavit for attachment it is error to allege several grounds for attachment disjunctively.
It is provided by statute that in attachment suits the defendant may file a plea in abatement, verified by affidavit traversing the truth of the alleged ground upon which the attachment was sued out; and the reason for the rule forbidding the statement of the grounds for attachment...
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Williams v. State, 07-KA-59483
...owner does not have to be named at all, so long as otherwise the warrant meets the constitutional requirements. In Banks v. City of Jackson, 152 Miss. 844, 120 So. 209 (1929), the search warrant listed the person as an "unknown occupant" but gave a specific street address of the premises. T......
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Scott v. State, 46815
...the name of the owner or occupant of the building is not essential when probable cause for such search exists. In Banks v. City of Jackson, 152 Miss. 844, 120 So. 209 (1929) this Court stated: In the case at bar, the place to be searched is specifically described as being located at 123 Wes......
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Collins v. State
... ... Affirmed ... Affirmed ... Jaap & ... Higgins, of Jackson, for appellant ... The ... affidavit and the search warrant must specifically designate ... vitiate the description ... Banks ... v. City of Jackson, 152 Miss. 844, 120 So. 209 ... This ... court has heretofore ... ...
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Black v. State
... ... based upon two or more statutory grounds in the disjunctive, ... as validly may be done, Banks v. City of Jackson, ... 152 Miss. 844, 120 So. 209, and as was done in the case now ... before ... ...