Dotson v. State
| Citation | 126 So. 38,156 Miss. 365 |
| Decision Date | 10 February 1930 |
| Docket Number | 28218 |
| Court | Mississippi Supreme Court |
| Parties | DOTSON v. STATE |
Suggestion of Error Overruled, Mar. 10, 1930.
APPEAL from circuit court of Rankin county HON. D. M. ANDERSON Judge.
N. H Dotson was convicted for possessing intoxicating liquor, and he appears. Affirmed.
Affirmed.
J. S. McGuire, of McComb, for appellant.
An affidavit is void which charges that the alleged crime was committed in Justice of the Peace District No. 5 when there is no Justice of Peace District No. 5, but should have been made in the fifth supervisors district, Rankin county.
The thirteen-day period was an unreasonable time for an officer to have in his possession an unreturned search warrant, especially where it applies to immovable property.
Blakemore on Prohibition; Taylor v. State, 102 So. 267; Powell v. State, 111 So. 738.
Colbert Dudley, of Forest, for appellant.
A justice, being at the time in another district, outside of his territorial jurisdiction, cannot hold an ex parte hearing, take evidence upon an affidavit and make a judicial finding of the probable cause upon which a search warrant issues.
Hendrix v. State, 109 So. 263, 144 Miss. 87; Mai v. State, 119 So. 177.
Article 6, section 171 of the Constitution creates the justice court and provides for the election of justices in and for each justice district.
A question of jurisdiction can be raised at any time.
An officer cannot hold a search warrant over a man's head and swoop down whenever he feels like it but a warrant should issue for each search.
Powell v. State, 146 Miss. 677.
W. A. Shipman, Assistant Attorney-General, for the state.
A motion for a continuance is addressed to the sound discretion of the court, and the supreme court always interferes with extreme reluctance and caution; and will only interfere when a palpable error has been committed by the court below, without the correction of which manifest injustice will be wrought and wrong done the appellant.
McDaniel v. State, 8 S. & M. 401; Stewart v. State, 50 Miss. 589; Parker v. State, 55 Miss. 417; Gavigan v. State, 55 Miss. 540; Corban v. State, 99 Miss. 486, 55 So. 43; Haggett v. State, 99 Miss. 844, 56 So. 172; Polk v. State, 64 So. 215; Sullivan v. State, 108 Miss. 709, 67 So. 177.
Where a person had committed an indictable offense in the presence of the sheriff, he or a private person for that matter, was authorized to make the arrest then and there, and in the manner in which the evidence shows it to have been made, without warrant.
Section 1447, Code of 1906, section 1285, Hemingway's Code 1927.
The facts in this case differentiate from the rule stated in Butler v. State, 135 Miss. 885, 101 So. 193, and Iupe v. State, 140 Miss. 279, and place it squarely within the rule announced in Hester v. United States, 44 S.Ct. 445.
Argued orally by J. S. McGuire and Colbert Dudley, for appellant, and by W. A. Shipman, Assistant Attorney-General, for the state.
This case was appealed to the court below from a judgment of a justice of the peace convicting the appellant of having intoxicating liquor in possession. The case was tried in the court below in the absence of the appellant, a motion for a continuance on the ground of his illness having been overruled. The court below committed no error in overruling this motion, for it was justified in finding, from the evidence, that the appellant could have appeared in court without detriment to his health.
The conviction was on the evidence of the sheriff, admitted over the appellant's objection. The ground of this objection is that the evidence was obtained by the sheriff by a search of the appellant's premises under a defective search warrant and after the expiration of a reasonable time within which the search could have been made after the warrant was issued.
The evidence was to the effect that the sheriff and another, on the night of April 27, 1929, were in the public road in front of the appellant's residence intending to make a search thereof under the warrant, and while there an automobile drove up and stopped. The occupants thereof went to the door of the appellant's residence, returned to the automobile accompanied by the appellant, who walked a short distance therefrom into some bushes and returned with a glass jug containing a liquid which the sheriff says he recognized as whisky; and that he (the sheriff) laid his hand on the jug, saying, "I will take this," when the appellant recognized him and dropped the jug without breaking it. The sheriff then examined its contents, which proved to be whisky. He then arrested the appellant and served his warrant.
On this evidence, the warrant was not necessary in order to justify the arrest of the appellant. The sheriff was not on the appellant's premises when he saw him with the whisky; and assuming, though the evidence leaves that fact in doubt, that the appellant was then on his premises and not in the public road the sheriff's evidence relative thereto is competent, for the eye commits no trespass, and no unlawful search is made by a public...
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