Bradley v. State

• Decision Date: 31 December 1923
• Docket Number: 23684
• Citation: 134 Miss. 20,98 So. 458
• Court: Mississippi Supreme Court
• Parties: BRADLEY v. STATE

98 So. 458

134 Miss. 20

BRADLEY v. STATE

No. 23684

Supreme Court of Mississippi

December 31, 1923

Division B

APPEAL fro circuit court of Forrest county, HON. R. S. HALL, Judge.

Zeke Bradley, alias James Bradley, was convicted of manufacturing intoxicating liquor, and he appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Davis &amp Hill, for appellant.

The state's instruction is erroneous. It does not instruct the jury that before appellant can be convicted the state must prove that he "feloniously" made intoxicating liquor. The omission of the word "feloniously" from the instruction is fatal as the felonious intent is an essential element of the crime. Nor is the error cured by any of the instructions given the appellant, as none of them charged the jury on this point.

The court also erred in permitting the witness Gray to testify that he had bought whisky from appellant. It would not have been admissible had appellant never been tried for said sale but after he had been acquitted by the jury on the very same charge, on the testimony of the said Gray, it was so highly prejudicial to appellant to admit proof of said crime that the question needs no argument. It is difficult to understand upon what theory the court permitted proof to be made of another and distinct crime. The reasons why it is not permissible to prove against the accused separate and distinct crimes are well stated in King v. State, 66 Miss. 502, 8 So. 188, as follows: "After the state had proved distinctly one unlawful sale it was error to admit testimony of other and different sales. The general rule is that the issue on a criminal trial shall be single, and that the testimony must be confined to the issue, and that on a trial of a person for one offense the prosecution cannot aid the proof against him by showing that he committed other offenses. Whart. Crim. Ev. 104; 1 Bish. Crim. Proc. 1120, et seq. The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him. To permit such evidence, says Bishop, 'Would be to put a man's whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.' 1 Bish. Crim. Proc. 1124."

And the reasons why proof of other crimes is not admissible, as given in King v. State, supra, have been approved by this court in the following additional decisions: Kearney v. State, 68 Miss. 233, 8 So. 292; Cook v. State, 81 Miss. 146, 32 So. 312; Smothers v. Jackson, 92 Miss. 327; Page v. State, 105 Miss. 536, 62 So. 360, 45 So. 982; Collins v. State, 99 Miss. 52, 54 So. 666; and the comparatively recent case of Lowe v. State, 90 So. 78, in which we appeared as counsel for appellant in this honorable court, and in the opinion of which case all the above and prior decisions are cited and approved. We repeat that it was so manifestly prejudicial to appellant to permit proof of a sale of whisky by him, especially after he had been acquitted thereof, as to deny him a fair trial.

A motion was made to exclude the testimony of the officers because the facts testified by them were obtained under void search warrant proceedings--First, because the description in the affidavit and warrant was insufficient to describe the premises to be searched. The parts of the still introduced were inadmissible because the warrant did not authorize the seizure of any still, but only such intoxicating liquor and appliances as might be found. The authorities are unanimous in holding that only those things may be seized that are named in the warrant. The requirements being that the "thing" to be seized shall be "particularly" described, it logically follows that only those things may be seized that are "particularly" described.

The justice of the peace issuing the warrant made it returnable instanter, instead of making it returnable at a day not less than five days thereafter. Search warrant proceedings being in derogation of the common law, and being criminal proceedings, must be strictly construed. Here we have the justice of the peace violating a plain mandate of the statute. See Code 1906, sec. 1749 Hemingway's Code, section 2088, J. Livelar & Company v. State, 53 So. 681; U. S. v. Franzione, 286 F. 771, and other authorities. Therefore, the still and liquors having been wrongfully seized were inadmissible against the defendant.

The affidavit for the search warrant was made on information and belief. No hearing was had by the magistrate to determine whether probable cause existed for the issuance of the warrant, and no facts were set forth in the affidavit showing upon what the affiant based his information and belief that intoxicating liquors were being kept by appellant so that the magistrate might determine therefrom whether probable cause existed for the issuance of the writ. A majority of the courts hold that the determination of "probable cause" is a judicial act, resting solely in the officer having the authority under the law to issue the warrant, and cannot be delegated to the person making the affidavit, and that a law which authorizes the issuance of a warrant merely on an affidavit based on information and belief of the party making it violates the constitutional requirement that search warrants shall issue only on probable cause, supported by oath or affirmation. Reg v. Walker, 13 Ont. Rep. 83; Rex v. Kehr, 11 Ont. L. Rep. 517, 6 Ann. Cas. 612; State ex rel. Register v. McGahey, 12 N.D. 535, 97 N.W. 865, 1 Ann. Cas. 650, 14 Am. Crim. Rep. 283; Lippman v. People, 175 Ill. 101, 51 N.E. 872. The notes instate v. McGahey, supra, 1 Ann. Cas. 650, say that a later North Dakota case upholds the McGahey case, to-wit: State v. Patterson (1904), 99 N.W. 67, find that both cases are supported by the case of White v. Wager, 83 Ill.App. 592, affirmed 185 Ill. 195, holding that where the requirement under constitutional or statutory provisions is that a search warrant shall issue only upon probable cause, the affidavit, oath or affirmation must show probable cause arising from facts within the knowledge of the affiant, or must exhibit facts upon which his belief is based, as mere belief alone is insufficient. See also State v. Peterson and State v. Ramano (Wyoming), A. L. R. 13, page 1284, in which the subject is exhaustively treated, and the authorities, pro and con the proposition are discussed. The Peterson and Romano cases hold that an affidavit based on information and belief is insufficient to support an application for a search warrant. See also Dukes v. Commonwealth (Ky.), 244 S.W. 703, holding that the affidavit must state facts, and not conclusions; also Caudill v. Commonwealth, 249 S.W. 1005 (Ky.); also Wiggins v. State (Wyo.), 206 P. 373; De Graff v. State, 2 Okla. Crim. Rep. 519, 103 P. 538; Kinsel v. Ham, 39 Okla. 623, 49 L. R. A. (N. S.) 770, 136 P. 427; Chipman v. Bates, 15 Vt. 51, 40 Am. Dec. 663.

The federal courts, in construing the law, have unanimously held that the finding of the legal conclusion or of probable cause from the exhibited facts is a judicial function, and it cannot be delegated by the judge to the accuser. U. S. v. Kaplan, 286 F. 969, citing Veeder v. U.S. 252 F. 414, 164 C. C. A. 338 (C. C. A. Seventh Cir.) certiorari by defendant denied by United States Supreme Court, 246 U.S. 675, 38 S.Ct. 428, 62 L.Ed. 933. See also U. S. v. Borkowski (D. C.), 268 F. 410; U. S. v. Kelih (D. C.), 272 F. 484; Central Consumers Company v. James (D. C.), 278 F. 249; Queck v. Hawker (D. C.), 282 F. 942; Giles v. U.S. 284 F. 214 (C. C. A. first Cir.). See also U. S. v. Inelli, 286 F. 731; Ganci v. U.S. 287 F. 60; U. S. v. Ilig, 288 F. 939; Lipzchutz v. Davis, 288 F. 974; Atlantic Food Products Corp. v. McClure, 288 F. ; U. S. v. Harnich, 288 F. 256; U. S. v. Dziadus, 289 F. 837; U. S. v. Kykowski, 267 F. 866; U. S. v. Friedman, 267 F. 856.

There is nothing contained in any of the decisions of our own court so far as we have been able to discover, antagonistic to the views and authorities cited above. In Quintini v. State, 76 Miss. 498, which was a case that dealt with the sufficiency of an affidavit charging a misdemeanor, the court held that while a person may be arrested only on probable cause, still probable cause in law is a charge of crime made on oath, without regard to the fact whether the oath is made on personal knowledge or upon information and belief merely; that by the common law certain officers made information without oath, and such unsworn information was probably caused by that law. And while we are unwilling to admit the correctness of said holding, still that case is based on the ruling made in the case of Coulter v. State, 75 Miss. 356, which likewise dealt with the sufficiency of an affidavit charging a misdemeanor.

S. C. Broom, Assistant Attorney-General, for the state.

The second assignment of error is that the court erred in granting the state's only instruction. This instruction is found on page 8 of the record, and charges the jury that if they believe from the evidence beyond a reasonable doubt that the defendant did make or distil intoxicating liquor, or if they believe beyond a reasonable doubt that he aided or abetted, or in any way assisted in making intoxicating liquor as charged, etc.

The indictment charges that he did unlawfully and feloniously make intoxicating liquors. It is, of course, well settled that to arrive at a proper meaning of the several instructions given all the...