Borders v. State

• Decision Date: 06 April 1925
• Docket Number: 24626
• Citation: 104 So. 145,138 Miss. 788
• Court: Mississippi Supreme Court
• Parties: BORDERS v. STATE. [*]

104 So. 145

138 Miss. 788

BORDERS v. STATE. ^[*]

No. 24626

Supreme Court of Mississippi

April 6, 1925

Division B

Suggestion of Error Overruled May 25, 1925.

APPEAL from circuit court of Clay county, HON. J. I. STURDIVANT Judge.

Roberta Borders was convicted of possessing more than a quart of intoxicating liquor, and she appeals. Affirmed.

Affirmed. Suggestion of error overruled.

B. H. Loving, for appellant.

I.

There was no legal transcript from the justice court of the record in such court, transmitted to the circuit court, to confer jurisdiction on the said circuit court and the court erroneously overruled appellant's motion for a proper writ to compel the magistrate to transmit such a proper transcript. The above proposition is determinable in favor of appellant, by sections 84 and 85, Code of 1906 (sections 64 and 65, Hemingway's Code), and the cases of Hughston v. Cornish, 59 Miss. 372; Xydias v. Pellman, 121 Miss. 400, 83 So. 620, and Calhoon v. State, 86 Miss 553, 38 So. 660.

A justice of the peace must certify to the circuit court his docket entries and judgments, and in this case, there is nothing certified to the circuit court by the justice of the peace, except his final judgment and further, his certificate to the same plainly states that it is a true copy of the proceedings had in his court in this case, and on the basis of same and it is on such basis that the jurisdiction of the circuit court must stand or fall, the circuit court clearly had no jurisdiction of this case, because such certificate clearly shows that no affidavit in this case was filed in the justice court for the same to legally acquire jurisdiction of this case, and for a criminal prosecution to be legally instituted therein, and as the circuit court had no jurisdiction of this case, other than the justice court had and other than the justice court was shown to have had by its certified record transmitted to the circuit court.

II.

The affidavit for the search warrant and the search warrant are general and blanket and are too broad and do not specifically designate the place or thing to be searched, as required by section 23 of the Constitution, and are therefore, void. Section 23 clearly contemplates that the affidavit for a search warrant and also the search warrant, must specifically designate a certain place or thing where there is probable cause that the contraband property is located, or at the outside certain places or things which may be reasonably grouped together as an entirety, and measured by this standard, the affidavit and warrant in this case are undoubtedly void. The best argument in support of this view is a reading of the wording of the affidavit and search warrant themselves.

They cover the dwelling house, outhouses, premises, automobiles, and other vehicles used or occupied by and the person of the appellant; and in their generalness, state that appellant is manufacturing liquor on his person; and besides being general and blanket, they are alternative in their terms, and practically leave the thing to be searched to the discretion of the officer. The most glaring example of this alternativeness, which we think does away with the specificness required by the Constitution, as well as does the generalness, is where the purported affidavit states that liquor is possessed, etc., in the automobiles, or other vehicles used or occupied by the appellant.

Our authorities in support of this proposition, besides section 23 of the Constitution, are Rignall v. State, 98 So. 444, and Jackson v. State, 99 So. 548 (a Florida case), and notes 101 Am. St. Rep. 331, and 17 Ann. Cas. 232.

III.

The purported affidavit for the search warrant was in truth and fact, no affidavit, because the so-called affiant did not swear to the contents of the paper, purporting to be the affidavit for the search warrant and because no oath was administered to him by the officer, when he signed the same.

The undisputed testimony in the record is to the effect that the so-called affiant went to the magistrate to get a search warrant and merely made out and signed the purported affidavit without swearing to the truth of the contents of the same, or without any oath in any manner or form being administered to him, or that there was any pretense of such being done. It is absolutely necessary that the so-called affiant should have sworn to its contents and that some unequivocal form of oath should have been administered to him by the officer. Husbands v. State, 105 Miss. 548, 62 So. 418.

Carlisle v. Gunn, 68 Miss. 243, 8 So. 743, holds that whether a paper in form of an affidavit is really one, is not determinable by what either of the parties consider in reference to it, but by an inquiry as to whether anything was done which could be properly construed as the taking and administering of an oath. See also Britt v. Davis, 130 Go. 74, 60 S.E. 180.

IV.

The instruction refused by the court, correctly announced the law and the same was predicated upon a reasonable hypothesis of fact, not covered by any other instruction given to either the state or appellant, and the refusal of this instruction was reversible error and was prejudicial to appellant. This court has held in Powers v. State, 124 Miss. 425, 86 So. 826, and Stribbling v. State, 124 Miss. 141, 86 So. 897, that the consent to the violation of the statute, and the failure to object to such violation is not a violation of the statute.

The undisputed evidence is that Charley Harris lived in the house of appellant and that he had the privilege of using the closet in question, and it seems to us that under the hypothesis as presented by the instruction, that for appellant to have been guilty, it was necessary that she exercise control and dominion over the whisky in question, after it was left by Harris in the closet, and that her conduct amounted to no more than to a failure to object to the violation of the law by Harris, and a failure to object on her part for Harris doing something, as far as she was concerned, she had a right to do. It is true that another instruction was given appellant to the effect that her consent and knowledge of the crime of Harris did not make her guilty of such crime, but such instruction did not present the hypothesis of fact presented in this instruction and did not cover her failure to object to Harris' crime.

We respectfully submit that there is manifest reversible error in this case, and that this case should be reversed and appellant should be given a judgment in the supreme court, discharging her in this case.

Harry M. Bryan, Assistant Attorney-General, for the state.

One of the objections urged here by appellant is that the court should not have overruled her motion for a proper writ to compel the justice of the peace to transmit a proper transcript of the record of the proceedings had before him. She says the circuit court did not have jurisdiction in the cause for the reason that there was no proper transcript filed therein. Counsel cites Hughston v. Cornish, 59 Miss. 372, as authority for the position that a justice of the peace must certify to the circuit court "his docket entries" and judgments.

No one could successfully deny that this court has uniformly held that the statute must be substantially complied with in order to invest the circuit court with jurisdiction. But, in the case at bar we find that the justice sent up (1) the original affidavit charging the offense, (2) a certified copy of his judgment, (3) the original appeal bond, and (4) his own certificate.

When appellant filed her motion for a writ "to compel the justice of the peace to transmit a proper transcript," the circuit court, by its order, found that the justice "had transmitted to this court (1) a certified copy of his judgment, (2) and the appeal bond, and (3) the papers filed in his court." We think the gist of the matter of what is required by the statute was clearly stated by the court in the case of Murphy v. Hutchinson, 47 So. 666, 93 Miss. 643, speaking through Judge FLETCHER. We earnestly contend that each of the requirements of this decision are fully met by the record.

Appellant next says that the affidavit for search warrant and the warrant itself are void because not specifically designating the thing and place to be searched. It will be noted by the court that while objection was made by defendant during the examination of the state's witness, Cottrell, to his testimony because of certain objections to the search warrant, no motion to exclude was made by the defendant at the conclusion of the state's case, and the defendant herself thereupon took the stand in her own behalf. The very first question asked her by her attorney and her answer thereto, are as follows: "Q. Roberta, whose whiskey was it that was found in your house? A. Uncle Charley Harris'." (Tr. 28).

Having thus admitted in her own testimony the fact which the state had proved as a result of a search of her home, no objection can now be made to the sufficiency of the affiant and search warrant. Blowe v. State, 130 Miss. 112, 93 So. 577, 24 A. L. R. 1429. The argument of counsel therefore, to the effect that the affidavit was not properly sworn to, falls by the same token.

Notwithstanding the above, the affidavit and writ are not void for the reason that this court has held that it is not necessary for the affidavit and warrant to describe the place to be searched with the technical description of conveyance. Loeb v State, 98 So. 449, 133 Miss. 883; Bradley v. State, 98 So. 458, 134 Miss. 20; Matthews v. State, 100 So. 98, 134 Miss. 807. And in Rignall v. State, 98 So. 444, 134 Miss. 169, it was held that the place described as premises without other description and without any words...