Falkner v. State

• Citation: 98 So. 345,134 Miss. 101
• Decision Date: 31 December 1923
• Docket Number: 23231
• Court: Mississippi Supreme Court
• Parties: FALKNER v. STATE

98 So. 345

134 Miss. 101

FALKNER v. STATE

No. 23231

Supreme Court of Mississippi

December 31, 1923

Division B

Suggestion of Error Overruled Jan. 14, 1924.

APPEAL from circuit court of Leake county, HON. G. E. WILSON, Judge.

J. D Falkner was convicted of unlawful possession of intoxicating liquors, and he appeals. Affirmed.

Cause affirmed.

James T. Crawley, for appellant.

The search warrant as issued was void for the reason that the said search warrant was issued without probable cause, as is shown by the record in this case. In United States v Borkoski (1920), 268 F. 408, it is said that a search warrant may not be issued simply because of the presentation of an affidavit alleging probable cause, but the question of the probable cause must be submitted to the magistrate so that he may exercise his judgment as to the sufficiency therefor. See also U. S. v. Rykowski, 267 F. 866; State v. Peterson, 194 P. 342, 13 A. L. R. 1284.

Section 23 of our Constitution provides that: "The people shall be secure in their persons, houses and possessions from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized." Therefore under this section of our Constitution the mayor of Carthage, issued a search warrant without authority, for he issued it without probable cause, as the record discloses. For the record shows that the only thing that transpired in the securing of the warrant was the making of the affidavit by the sheriff, and the search warrant issued as a matter of course. Yet the mayor, acting as a magistrate, was the only one who had the right to determine whether or not there was reasonable cause for the issuance of this search warrant.

But we maintain that even though there had been probable cause for the issuance of this warrant, yet the mayor, as such, under the law had no authority whatsoever outside of the corporate limits of the municipality.

Section 5927, Hemingway's Code, section 3399, Code of 1906, provides among other things that the jurisdiction of the mayor shall be, as ex officio justice of the peace, confined to the corporate limits of the municipality.

In 63 Miss. 187, in the case of E. C. Bell v. H. D. McKinney, it is held that "the mayor of all incorporated towns in this state shall be ex-officio justice of the peace in and for the several counties in which their respective towns are situated," the mayor has no final criminal jurisdiction as a justice of the peace, except as to crimes committed within the corporate limits of the town; and as to crimes committed outside the corporate limits, he can only act as conservator of the peace, and bind the offender over to await the action of the grand jury.

In Heggie v. Stone, 12 So. 253, CAMPBELL, C. J., says that under the Constitution of 1869, which provided that a "competent number of justices of the peace and constables shall be elected in each county by the qualified electors thereof, by districts" and it was not in the power of the legislature to clothe the mayor of a town, comprising a part of a district for the election of justices of the peace with the official character and jurisdiction of a justice of the peace for the district outside of the town, and the charter of Vaiden, which contains a provision making the mayor ex-officio justice of the peace beyond the territory of the town was as to that, inoperative and void. Therefore this case was not within the territorial jurisdiction of the justice of the peace.

In Riley v. James, 18 So. 930, it was held that a town marshall with authority as constable, cannot execute a distress warrant without his own town.

Therefore, from the authority cited above it is clearly shown that the mayor of Carthage, acting as mayor, had no authority whatsoever to issue a search warrant for the search of a man's home, and premises, outside the territorial limits of the town of Carthage. This being true the court should have excluded all of the evidence acquired by officers in their search of the premises outside the municipality, belonging to appellant, for the reason that the evidence as secured, was illegally secured by an illegal search of the premises of appellant during his absence from home, and without his consent, and following the rule of this court in the cases of Tucker v. State, 90 So. 845; Williams v. State, 92 So. 584; Miller v. State, 93 So. 2; Butler v. State, 93 So. 355, the court should have excluded the evidence and directed a jury and verdict of "not guilty."

The third assignment of error is covered by referring to the following cases, which control: Tucker v. State, 90 So. 845; Williams v. State, 92 So. 584; Miller v. State, 93 So. 2; Butler v. State, 93 So. 3; Taylor v. State, 93 So. 355.

In arguing assignment of error No. 4, we desire to call the attention of the court to each of the instructions asked by, and given to the state. In each of these instructions the word "unlawful" is omitted. It is our contention that the state, by leaving out the word "unlawfully," in these instructions failed to announce the law, and that as the state failed to announce the law by its instructions grievous error was committed, and the case should be reversed for these errors, and a new trial awarded the appellant.

It is our contention that it is necessary for the state to say in its instructions that the jury must believe beyond a reasonable doubt that the defendant did unlawfully have whisky in his possession before they can legally convict.

The defendant has a right to have the law distinctly declared to the jury in the instructions. See Staten v. State, 30 Miss. 619, 1 Morris St. Cases, 834; Cothran v. State, 39 Miss. 541, 2 Morris St. Cases, 1382. This has been the universal practice for many years. It is well settled law, and should not be disturbed. In 3 Wharton's Criminal Procedure (10 Ed.), page 2075, section 1644, it is declared: "The defendant has a right to the full statement of the law."

S. C. Broom, Assistant Attorney-General, for the state.

The first assignment of error attacks the validity of the search warrant, because it was issued without probable cause, and by the mayor of Carthage for the search of the premises of a citizen who lived without the corporate limits of the town.

Section 2088 of Hemingway's Code, is the section authorizing the issuance of search warrants for intoxicating liquor, and was evidently enacted after due consideration of section 23 of the Constitution of the state of Mississippi, which simply provides against unreasonable seizure or search, and further provides that no warrant shall be issued without probable cause supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized. With that constitutional provision in mind the legislature enacted this particular statute which became the law in 1908, and in this statute they provided that upon affidavit of any credible person that has reason to believe, and does believe, etc., a warrant shall be issued, etc. Therefore, it will be observed that no warrant could issue except on probable cause. The statute of other states may be different. The courts of other jurisdictions may require that there be some sort of ex parte proceeding conducted by the officer who takes acknowledgment and issues the warrant, but all of that was taken care of in our statute, which in effect defines what is probable cause, and this statute has never been declared unconstitutional by this court nor any other so far as we know.

The statute says that it shall be the duty of any justice of the peace of the county in which the place is situated to issue a search warrant. The mayor is an ex officio justice of the peace, therefore, he certainly had a right to issue a search warrant and direct that it be returned to the proper officer. There is, therefore, no merit...