Bufkin v. State

• Decision Date: 31 December 1923
• Docket Number: 23679
• Citation: 98 So. 452,134 Miss. 1
• Court: Mississippi Supreme Court
• Parties: BUFKIN v. STATE

98 So. 452

134 Miss. 1

BUFKIN v. STATE

No. 23679

Supreme Court of Mississippi

December 31, 1923

Division B

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

D. P Bufkin was convicted of having more than one quart of intoxicating liquor in his possession, and he appeals. Affirmed.

Judgment affirmed.

Davis &amp Hill, for appellant.

The defendant was charged by affidavit in the justice court with having intoxicating liquor in his possession. The charging part of the affidavit, before amendment, was that defendant "did violate the law by having intoxicating liquor in his possession against the peace and dignity of the state of Mississippi." Before the trial, and over the objection of the defendant, the justice of the peace permitted the county attorney to amend the affidavit so as to insert in the affidavit after the word "having" and before the word "in" the words "more than one quart." The judgment of the justice of the peace shows that said amendment was made over the objection of defendant. The defendant was convicted, appealed to the circuit court and was again convicted, and fined five hundred dollars and sentenced to jail for three months, but one-half of the fine and jail sentence was suspended during good behavior.

At the close of the state's testimony a motion was made to exclude all the evidence offered by the state for the reason that it was obtained by the sheriff and his two deputies by virtue of a search made under void search warrant proceedings. Two or three quarts of whisky were found in appellant's home, and after the close of the testimony and the overruling of the motion to exclude same, the jury retired to deliberate, and thereafter came into court with a verdict. Whereupon the court announced that it occurred to the court the defendant had not been arraigned, and had the defendant arraigned in the presence of the jury, declining to accept the verdict, and after the arraignment, which was "not guilty," the court sent the jury back to the jury room "for further consideration of the case" and in a minute or so afterwards the jury came back into court with a verdict of guilty.

We respectfully submit that the court erred in arraigning the defendant after the jury made up its verdict and had returned it into court. An arraignment at this stage of the proceedings is a nullity. We are aware that this court has held in the case of Scruggs v. State, 93 So. 482, that a defendant may expressly or impliedly waive arraignment, citing Arbuckle v. State, 80 Miss. 15, 31 So. 437. But the situation here is different. If the state undertakes to arraign the defendant, it must do so at the proper time and in an orderly manner. Appellant certainly cannot be deprived of his right under the statute to be arraigned at the right stage of the trial, and he cannot be deprived of his right to question any illegal procedure if he takes advantage of it in the proper way. In fact, the statute gives him the right to except to it. Washington v. State, 93 Miss. 270, 46 So. 539; Short v. State, 82 Miss. 473, 34 So. 353. And the record clearly shows that he did object before the arraignment was had, that the court arraigned him over his objection, and that he duly excepted to the court's action.

The affidavit charges no offense, because it does not allege that defendant "unlawfully" had intoxicating liquor in his possession, and the defect, being jurisdictional, may be raised here for the first time. It will be observed that the affidavit does not describe or designate the particular kind of liquor, but merely charges possession of "intoxicating liquor," and home-made wines are intoxicating, but possession thereof is entirely legal under the law, even in quantities of more than one quart. Because there being no valid charge on account of the omission of the word "unlawful," the point may be made for the first time in this court. Jordan v. State, 87 Miss. 170, 39 So. 895; Irby v. State, 91 Miss. 542; Pittman v. State, 107 Miss. 154, 65 So. 123. Nor, does the allegation that defendant "did violate the law" cure the defect, this being a mere conclusion. In Irby v. State, supra, the affidavit charged the accused with selling whisky "against the peace and dignity of the state of Mississippi," and in Jordan v. State, supra, the charge was that defendant "did carry a certain deadly weapon, to-wit, a pistol, concealed on his person, against the statute in such cases made and provided and against the peace and dignity of the state of Mississippi," and yet in both cases the affidavits were adjudged insufficient.

The county attorney was without power to amend the affidavit in the justice court, over defendant's objection, so as to charge an offense of a higher degree. It was tantamount to charging a different crime. The judgment of the justice court recites that the amendment was made over defendant's objection. If the prosecution cannot amend an affidavit in the circuit court, where the case is tried de novo on appeal, so as to charge a new and different offense, certainly it cannot amend the affidavit in the justice court so as to charge a new and different offense, and it is equally without power to amend so as to charge a similar offense carrying a higher degree of punishment.

This state's evidence should have been excluded because obtained under illegal and void search warrant proceedings, contrary to section 23 of the constitution, and the statutes regulating search warrant proceedings, and the testimony was, therefore, inadmissible, being admitted in violation of section 26 exempting an accused from being compelled to testify against himself.

First, it appears that the warrant was issued by a justice of the peace of beat three of Forrest county to search the premises situated in beat two of said county. The statute seems to indicate that any justice of the peace may issue the warrant but the statute evidently intended that only such justice of the peace as had jurisdiction might issue it. The statute provides that the magistrate shall direct in the warrant that the officer executing the warrant make return thereof and bring the liquors before him, the magistrate, on a day certain, not less than five days thereafter, and certainly a justice of the peace of one district could not issue a warrant to seize property in another district and bring before him for disposition, for that would be exercising jurisdiction not properly given him under the Constitution.

The return on the search warrant showed that the liquors seized thereunder were seized February 24, 1923, whereas the affidavit charged, and the evidence showed, that the liquors which were seized and which were admitted on the trial, were possessed on February 23, 1923. It is settled law that an officer may not impeach his own solemn return; he may not show that the property seized and described in his return as on a certain date was seized on a different date. There was, therefore, a material variance, and the evidence should have been excluded for said reason.

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 requirements that search warrants shall issue only on probable cause, supported by oath or affirmation. Reg v. Walker, 13 Ont. 83; Rex v. Kehr, 11 Ont. L. 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 in State 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, and 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 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. Romano (Wyo.), 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, 294 S.W. 1005 (Ky.); also Wiggins v. State (Wyo.), 206 P. 373; DeGraff v. State, 2 Okla.Crim. 519, 103 P. 538; Knisely 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....