Cox v. State

• Decision Date: 21 March 1927
• Docket Number: 25767
• Citation: 112 So. 479,146 Miss. 685
• Court: Mississippi Supreme Court
• Parties: COX v. STATE. [*]

112 So. 479

146 Miss. 685

COX v. STATE. ^[*]

No. 25767

Supreme Court of Mississippi

March 21, 1927

Division A

On Suggestion of Error May 9, 1927.

1. CRIMINAL LAW. Any error in first introducing search warrant and affidavit held cured by objection to evidence, when later introduced.

Assuming search warrant and affidavit therefor should not be introduced till evidence obtained thereby had been offered and objected to, any error in overruling objection to them when offered first---not properly part of the evidence, and incompetent and inadmissible---was cured when on subsequent introduction of the evidence obtained thereby it was objected to on the ground that it was not obtained by means of a legal search warrant, to meet which objection it would have been necessary to introduce the affidavit and warrant.

2. CRIMINAL LAW. Evidence obtained on search held admissible against wife of occupant named in affidavit and warrant (Laws 1924, chapter 244, sections 1, 4, 5).

Under Laws 1924, chapter 244, sections 1, 4, 5, search on affidavit and warrant for search of residence, where defendant lived with her husband, though naming him alone as occupant, was valid, and the evidence obtained thereby admissible against her.

3. INTOXICATING LIQUORS. Contents of pitcher poured on floor held sufficiently identified as whisky.

Evidence on prosecution for possession of intoxicating liquor, held to sufficiently identify as whisky the contents of a pitcher which defendant poured on the floor.

4. INTOXICATING LIQUORS. Possession by defendant, rather than husband, of liquor, held under evidence question for jury.

Possession by defendant, rather than by her husband, of intoxicating liquor in their residence, held under the evidence for the determination of the jury.

5. INTOXICATING LIQUORS. Court's requirement of peace bond, in addition to imposing prescribed penalty on conviction of illegal possession of liquor, held authorized (Hemingway's Code, section 1323).

Under Hemingway's Code, section 1323 (Code 1906, section 1561), authorizing the court, on a conviction of an offense less than a felony, in addition to the prescribed penalty, to require the convict to enter into a bond in a reasonable sum to keep the peace, such a requirement on conviction of illegal possession of liquor is permissible.

ON SUGGESTION OF ERROR.

6. CRIMINAL LAW. Objection, of omitted allegation, to admission in evidence of affidavit for search warrant, held not available for first time on appeal.

Objection to admission in evidence, to show legality of search, of affidavit for search warrant, because alleging merely that affiant has reason to believe, and not that he does believe, not having been made below, is not available on appeal.

7. CRIMINAL LAW. Defendant may not complain of order to give peace bond without evidence as to his ability, he not having been refused permission to introduce evidence.

To complain on appeal of order directing defendant to execute peace bond without hearing evidence as to his ability to give it, he must have offered and been refused permission to introduce such evidence.

8. INTOXICATING LIQUORS. Fine and imprisonment not exceeding thirty days is limit of punishment for possession of liquor (Laws 1918, chapter 189, section 17).

The punishment for having intoxicating liquor in possession is that provided by Laws 1918, chapter 189, section 17, and is fine and imprisonment, the latter not to exceed thirty days.

APPEAL from circuit court of Leflore county HON. S. F. DAVIS, Judge.

Susie Cox was convicted of illegal possession of liquor, and appeals. Affirmed in part, and in part reversed and remanded for new sentence.

Affirmed.

Kimbrough, Tyson & Kimbrough, for appellant.

I. All evidence under the search warrant should have been excluded because the affidavit therefor was not sworn to. We are familiar with Borders v. State, 104 So. 145. Nevertheless, we believe if the court will read Crippen's testimony, which is exceedingly short, it will be clear that no oath was administered. While official papers are entitled to full credit and weight, the proof in this case does not meet the requirement of the law.

II. All evidence under the search warrant should have been excluded because the warrant and the affidavit therefor related solely to the dwelling house, premises, appurtenances, etc., of "one Alex Cox." Appellant was not suspected in the transaction as shown by the search warrant and affidavit therefor. Harrell v. State, 106 So. 269.

III. The court erred in admitting in evidence over defendant's objection the affidavit for the search warrant and the search warrant with the return thereon. This objection is made for two reasons: First, because the search warrant and affidavit therefor are not evidence of guilt; and, second, they serve only to show that the officer had authority to enter the premises. As conclusive of these questions, see Sandifer v. State, 101 So. 862; Pickle v. State, 102 So. 4; McNutt v. State, 108 So. 721.

IV. The court erred in allowing the sheriff to testify as to what "information" he had. His statement of his information was incompetent. In many cases it would be unimportant, but in this case it is of extreme importance, owing to the facts of the case. We submit that it was error for the court to overrule appellant's objection resulting in a confirmation in the minds of the jury of the propriety of the testimony and of its efficacy.

V. The court erred in overruling appellant's motion to exclude the search warrant and the affidavit therefor, and in overruling appellant's motion to exclude all evidence and direct a verdict for defendant. The evidence does not show that the liquor was, in fact, intoxicating. Again assuming that the contents of the pitcher was intoxicating liquor, the possession thereof by appellant was of such temporary, fleeting and transitory nature that it would not constitute possession in legal contemplation. In support of these contentions, we refer the court to Hill v. State, 92 So. 578; Parham v. State, 89 So. 775; Harness v. State, 95 So. 64; Anderson v. State, 95 So. 637; Brazeale v. State, 97 So. 525; Washington v. State (Ala.), 107 So. 34.

VI. While the affidavit for the search warrant shows that the affiant "has reasons to believe, that intoxicating liquor is being stored . . ." in the dwelling house occupied by "one Alex Cox," it does not show that the affiant "does believe." As absolutely conclusive of the soundness of the last assignment, see Turner v. State, 98 So. 240; Cox v. State, 107 So. 7. The allegation that the affiant "does believe" is essential to the validity of the affidavit and the search warrant.

VII. The court erred in requiring the defendant "in addition" to the fine and jail sentence imposed on her and as a part of the penalty to enter into bond in the sum of five hundred dollars, with two or more sureties, to keep the peace and be of good behavior for a period of two years. No proof was taken or inquiry made as to the ability of the appellant to make such bond or as to her financial state.

W. A. Scott, Jr., Special Agent, for the state.

I. Where the warrant states that the oath was administered it cannot be overturned by uncertain testimony. Borders v. State, 104 So. 145.

II. The place searched was that described in the affidavit. The affidavit prays for the search of the dwelling house that is occupied by Alex Cox and the search warrant authorizes and directs the search of the same property. Appellant makes the contention that the search and arrest of Susie Cox is invalid because the warrant does not authorize the search of her property. It is shown by the evidence that Alex Cox is the husband of the defendant. There is no contention that the sheriff searched any property other than that described in the affidavit and in the search warrant. We maintain that this affidavit and search warrant authorized the search of the property and that all intoxicating liquors found therein could be lawfully seized and introduced in evidence.

III. The sheriff's testimony as to his information did not prejudice the defendant.

IV. The liquor was intoxicating. Mitchell v. State, 91 So. 578, 129 Miss. 440.

V. The possession of the liquor was proved. There was sufficient evidence to warrant the jury in finding that the defendant had control and did in fact possess the intoxicating liquor. Borders v. State, 104 So. 145.

VI. The court did not err in imposing a peace bond on the defendant. The judge of the circuit court as conservator of the peace had ample authority to impose a peace bond on the defendant. See section 1323, Hemingway's Code.

VII. The search warrant was not void because the affidavit omitted the words "and does believe." Under the authority of Hendricks v. State, 109 So. 263, such a finding in the warrant itself is a judicial determination that the affiant made oath that he has reason to believe and does believe the facts as set forth in the affidavit.

VIII. No specific objection was made because of the omission of the above words. Nowhere in the entire record is there an objection specifically setting forth that the omission of the words "and does believe" constitutes a fatal defect and for this reason should be excluded and all evidence thereunder stricken out. In the absence of such an objection the state contends that the appellant is not at liberty to raise the question for the first time in the supreme court. This court has held on several occasions that the constitutional privilege of immunity from search without a valid search warrant is in the nature of a personal privilege and may be waived by the defendant.

Argued orally by W. A. Scott, Jr., Special Agent, for the state.

OPINION

SMITH, C. J.

The appellant...