Dawsey v. State
| Decision Date | 15 November 1926 |
| Docket Number | 25203 |
| Court | Mississippi Supreme Court |
| Parties | DAWSEY v. STATE. [*] |
1. INDICTMENT AND INFORMATION. Statute as to indorsement of indictment by foreman of grand jury held satisfied though name not on dotted line (Hemingway's Code, section 1174).Indorsement of indictment by grand jury foreman, though not on dotted line, but three-fourths of inch above words "Foreman Grand Jury," with statement of offense charged between, held to satisfy Hemingway's Code section 1174, (Code 1906, section 1418).
2. INTOXICATING LIQUORS.
Justice of peace may issue warrant for search for liquor in district of the county other than his, and it is not void because made returnable before him in his district,
3. CRIMINAL LAW.
Matter discovered on execution of valid search warrant for liquor is admissible.
APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON, Judge.
A. P. Dawsey was convicted of the unlawful possession of a still, and he appeals. Affirmed.
Affirmed.
B. J. Goss, for appellant.
I. This indictment is defective in that it fails to comply with section 1418, Code of 1906, in this, to-wit: The said indictment fails to show that it was signed or has ever been signed by the foreman of the grand jury. Unless the indictment strictly conforms to statutory requirements, there is no indictment. See Williams v. State, 64 Miss. 299; Stafford v. State, 76 Miss. 257.
It is true that R. R. Griffith was foreman of the grand jury when the supposed indictment was returned, but we contend that his official title, "Foreman of the Grand Jury," must immediately follow his name, and in this case the indictment shows that A. P. Dawsey and R. R. Griffith are jointly indicted and that the same has never been signed by R. R. Griffith as foreman of the grand jury, as appears on the face of the indictment. The indictment must stand or fall on its face, as testimony is inadmissible to aid the validity of an indictment. 22 Cyc. 206, subsection 5.
II. There was no legal evidence introduced at the trial of this case. The defendant's premises had been searched by the officers with a void search warrant. The affidavit for the search warrant did not pray for the issuance of a search warrant for a whisky still, but directed the sheriff among other things to search for and seize whisky stills. There was no authority for issuing the warrant for this purpose. First, there was no affidavit to base the warrant on; secondly, there was no law authorizing a warrant to be issued for whisky stills. See Morton v. State, 101 So. 379.
III. The search warrant is void for the further reason that the return fails to show that the defendant was served with a copy, as required by chapter 115, Laws of 1908.
IV. All testimony offered by the state on this search warrant was inadmissible for the search warrant was issued by C. R. Foxworth, a justice of the peace of District No. 5, Marion county, which was to be served in Justice District No. 2, the home of the defendant and where he was residing and was made returnable before C. R. Foxworth, in Justice District No. 5, although at the time two justices of the peace were qualified and acting in and for said Justice District No. 2. See Riley v. James, 73 Miss. 1, 18 So. 930; 24 Cyc. 501 G; section 2479, Code of 1906.
The testimony offered on a void search warrant is absolutely inadmissible, as has been held by this court in: Butler v. State, 129 Miss. 778; 93 So. 3; Williams v. State, 129 Miss. 486, 92 So. 584; Tucker v. State, 128 Miss. 211, 90 So. 845; Owens v. State, 133 Miss. 753; City of Jackson v. Howard, 135 Miss. 102; Turner v. Lilly, 54 Miss. 576. See, also, section 2724, Code of 1906.
V. We further contend that the testimony offered by the state is not sufficient to convict the defendant. Morton v. State, 101 So. 379.
W. A. Scott, Jr., Special Agent, for the state.
I. From a glance at the indictment, it will be seen that the foreman merely signed his name on the wrong line. As a matter of fact, there is an agreement in the certiorari papers to this effect. The papers further show that the indictment was duly filed and recorded and signed by the clerk of the court. There was no error in allowing the state to introduce testimony showing that the foreman had merely signed his name in the wrong place. The error was made through inadvertence and did not affect the validity of the indictment. Everything required by the statute has been complied with; the indictment was returned in open court by more than twelve members of the grand jury, in the presence of the foreman; was signed by the foreman and immediately filed by the clerk. This was all that was necessary to be done and as the mistake was merely a matter of form, no objection can be raised.
II. The appellant next contends that there is a variance between the affidavit and search warrant. The affidavit prays for a warrant to issue "directing a search for and seizure of said liquor, vessels, and appliances." The warrant directs a search and seizure of "such intoxicating liquors and appliances or whisky still." We can see no variance in the above. The additions of the words "whisky still" in the warrant do not broaden or enlarge the terms used in the affidavit, but restrict them by limiting the appliance to one kind only. "Appliance" is the wording used in the search and seizure statute found in section 1749, Code of 1906 (section 2999, Hemingway's Code).
III. The next contention of the appellant is that a copy of the warrant was not served upon the defendant as shown by the return. Mr. Hall states that a copy of the warrant was handed to the defendant and this was not denied in the record.
IV. It is further contended that the warrant is void for the reason that it was issued in Supervisor's District No. 5 for the search of property in District No. 2 and was made returnable to District No. 5; but see Falkner v. State, 98 So. 345; Bufkin v. State, 98 So. 452.
The affidavit charges and the return of the officers show that the defendant is guilty of a felony. The justice in this case as conservator of the peace had the power to arrest the defendant who is guilty of a felony wherever he may be found in the county and to bind him over to the circuit court. This case is entirely different from the one in which the justice seeks to try the case on a mere misdemeanor. We think the question presented here is controlled by Reynolds v. State, 101 So. 485, 136 Miss. 329.
This is the second appeal, this case having been reversed by this court on the first appeal, 136 Miss. 18, 100 So. 526. After reversal, the defendant was again indicted jointly with his son, O. W. Dawsey, on a charge of having a whisky still in their possession. The son, O. W. Dawsey, entered a plea of guilty. A. P. Dawsey, the father, was tried on the charge, resulting in his being convicted and sentenced by the court to a term of two years in the penitentiary.
The only assignments of error we deem it necessary to notice are:
First: That the indictment, as returned, was null and void, for the reason that it failed to comply with section 1418, Code of 1906 (section 1174, Hemingway's Code), in that said indictment fails to show that it was signed by the foreman of the grand jury in his official capacity, said section reading as follows:
"All indictments must be presented to the court by the foreman of the grand jury, with his name indorsed thereon, in the presence of at least twelve of such jury, including the foreman, and must be marked 'filed,' and such entry to be dated and signed by the clerk; and an entry on the minutes of the court of the finding or presenting of an indictment shall not be necessary or made, but the indorsement by the foreman, together with the marking, dating, and signing by the clerk shall be the legal evidence of the finding and presenting to the court of the indictment."
The thing complained of is that R. R. Griffith, foreman of the grand jury, signed his name on the back of the indictment immediately below the defendant's name, A. P. Dawsey, and immediately above these words:
The indictment is further indorsed.
And the record shows that R. R. Griffith was, at that term of court and on the day of the return of this indictment into open court, foreman...
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Creel v. State
... ... search warrant is timely ... Jordan ... v. State, 147 Miss. 24, 112 So. 590 ... A ... justice of the peace may issue a search warrant to be ... executed in another district and make it returnable before ... Dawsey ... v. State, 144 Miss. 452, 110 So. 239; Reynolds v ... State, 136 Miss. 329, 101 So. 485; Bufkin v. State, 134 ... Miss. 1, 98 So. 452 ... The ... issuance of the search warrant is not the beginning of a ... prosecution ... Keyes ... v. State, 155 Miss. 574, 124 So ... ...
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Moffett v. State, 39522
...by the clerk and such entry was dated and signed by the Clerk. We think the statute was sufficiently complied with. Dawsey v. State, 144 Miss. 452, 110 So. 239. Finally it is contended that the court erred in refusing to allow the appellant to make a motion for a mistrial because of the imp......