Cangelosi v. State

• Decision Date: 11 March 1935
• Docket Number: 31547
• Court: Mississippi Supreme Court
• Parties: CANGELOSI v. STATE

159 So. 846

172 Miss. 252

CANGELOSI v. STATE

No. 31547

Supreme Court of Mississippi

March 11, 1935

Division B

Suggestion Of Error Overruled March 25, 1935.

APPEAL from the circuit court of Pike county HON. E. J. SIMMONS Judge.

Joe Cangelosi was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed.

Affirmed.

Price, Cassidy & McLain, of McComb, for appellant.

The appeal to this court is had under the authority of Johnson v. The City of Hattiesburg, 155 So. 418.

The only general term as found in the search warrant, that by any possible stretch of the imagination could apply, would be the term "out-house," but it was not contended by the state that the cafe where the beer was found was an out-house. On the contrary, the state limited its contentions to the proposition that the cafe was included in the term "service station," and that the search warrant authorized the search of Joe-Joe's "Service Station," that being the place described in the search warrant.

As Joe Cangelosi's Cafe was used as a business house, such use necessarily excludes the idea that same could be defined as an out-house.

Wheelock v. State, 15 Texas 257.

The description in the search warrant "Service Station" did not authorize a search of Joe Cangelosi's Cafe or lunch counter.

Strangi v. State, 98 So. 340; Rignall v. State, 98 So. 444; Deaton, v. State, 102 So. 175; Vaughn v. State, 101 So. 439; Fatimo v. State, 98 So. 537; 50 C. J. 862, secs. 77, 78; 57 C. J. 280; People v. Pettinger, 271 P. 132; Standard Oil Co. v. Franks, 149 So. 799.

J. Gordon Roach, of McComb, and W. D. Conn, Jr., Assistant Attorney-General, for the state.

The description in the search warrant, "out-house," authorized a search of Cangelosi's cold drink stand or sandwich stand.

The cold drink stand or sandwich stand, was appurtenant to and within the curtilage of the residence, and is an "out-house" in the eyes of the law.

Yow v. State, 155 So. 427; Words and Phrases, 1st series, 5119 and 5121; State v. Powers, 36 Conn. 77, 79; State v. Roper, 88 N.C. 656, 658; State v. Faukener, 2 McCord, 438.

The description service station includes the, cold drink stand or sandwich stand.

Borders v. State, 138 Miss. 788, 104 So. 145; Bradley v. State, 98 So. 458; Loeb v. State, 133. Miss. 883, 98 So. 449; Matthews v. State, 134 Miss, 807, 100 So. 18.

Any description of the place or thing to be searched, that will enable the officer making the search with reasonable certainty, to locate such a place or thing, is sufficient.

Borders v. State, 138 Miss. 788, 104 So. 145; Matthews v. State, 134 Miss. 807, 100 So. 18; 5 Miss. Law Journal, 253; Forshee v. State, 120 So. 425; Holston v. State, 137 So.501.

OPINION

Anderson, J.

Appellant was convicted in the court of a justice of the peace of Pike county of the crime of the unlawful possession of intoxicating liquor. He appealed to, the county court where there was a trial de novo, resulting in his conviction again. A fine of one hundred dollars and costs was imposed in both courts. From the judgment of the county court, he appealed to the circuit court, where the judgment of the county court was affirmed. From the judgment of the circuit court, he appeals to this court, by authority of section 705, Code of 1930, which provides, among other things, that there shall be no appeal to the Supreme Court in any case, civil or criminal, which originated in a court of a justice of the peace, or municipal court, and was thence appealed to the county court, and thence to the circuit court, unless a constitutional question is necessarily involved, and then only upon allowance of the appeal by the circuit judge or by a Judge of the Supreme Court. This appeal was allowed by one of the judges of the Supreme Court, the circuit judge who tried the case having declined to allow an appeal.

The constitutional question involved is whether or not the evidence upon which appellant was convicted was procured by an illegal search of his cold drink and sandwich place where the liquor was found. Appellant's, contention is that the search was illegal because the place searched and where the liquor was found (the cold drink place) was not sufficiently described.

Appellant owned and operated a place of business in the city of McComb known as Joe-Joe Service Station, located eight or ten blocks from Main street and on Daited States Highway No. 51. Appellant owned the entire building, and connected therewith was what is commonly known as a filling station, a place...