Fatimo v. State
| Decision Date | 07 January 1924 |
| Docket Number | 23319 |
| Citation | 134 Miss. 175,98 So. 537 |
| Court | Mississippi Supreme Court |
| Parties | FATIMO v. STATE |
Appeal from the circuit court of Harrison county, HON. D. M. GRAHAM Judge.
On suggestion of error. Suggestion sustained, judgment of affirmance of lower court reversed, and case remanded.
For former report, see 95 So. 749.
Judgment reversed and case remanded.
Mize & Mize, for appellant.
The defendant runs a restaurant, renting part of a building from a barber who runs a barber shop therein. The barber rents the entire premises from a third person. The property consists of a building and back yard, and the barber occupied one room of the building in which he runs a barber shop, and the barber sub-rents the other part of the building, consisting of some four or five rooms and a main front room fronting on 28th Avenue in Gulfport, Mississippi, in which appellant runs a restaurant, and the other rooms leased by him he uses for rental purposes to roomers. The place has a back yard, with a fence on the South side and a fence on the North side, but on the West side there was no fence and that lot on that side joined a public alley, which is used by the public generally and adjoining this alley and on the South east corner of the lot is a chicken house that the appellant had nothing to do with; and the only privilege appellant had over the back yard was to put some coal in it. The barber also rented part of the back yard to some painters who painted automobiles and who kept the cars there while painting them. The back yard is also used generally by the public in going through, and the alley is one of the public thoroughfares of the city of Gulfport. The barber used the chicken house; and, right up against the chicken house was located an old counter, with which appellant had nothing to do, under this old counter, out in the back yard, as above described, was found the liquor involved in this case in a two gallon jug, by Officer Boyd, about thirty or thirty-five feet from the rear door of the building used by appellant as a restaurant and by the barber as a barber shop.
The search warrant called for the search of a "certain room in a building occupied by Nick Fatimo on 28th Avenue, between 13th Street and L. and N. R. R. Street, in the city of Gulfport, Harrison county, Mississippi." But no liquor was found anywhere in the building, and the only liquor that was found was that out in the back yard, under the old counter near the chicken coop, thirty or thirty-five feet from the rear door of the building.
The court erred in permitting the search warrant to be introduced in evidence since the affidavit on which the search warrant was predicated would first have to be introduced or its absence accounted for which was not done. Miller v. State, 93 So. 2; Giles v. United States, 284 Fed. Advance Sheets of December 28, 1922; 1 Archbold's Criminal Practice and Pleading, 131.
Even if the search warrant was properly introduced in evidence, the officers were not justified under this search warrant in searching the entire premises. The search warrant commanded the officers to search a "certain room in a building occupied by Nick Fatimo," and, under this search warrant, the officers went out and searched the back yard of this building, which yard adjoins an alley on the West side, with no fence between the yard and the alley, and which alley is a public thoroughfare, and back in the yard under an old counter found a jug of liquor.
The constitutional provision, among other things, provides that the place to be searched must be specially designated, and the court in Miller v. State, 93 So. 2, as well as in various other cases recently decided by this court, held that the search warrant must specifically designate the place to be searched, otherwise it is void.
The officers had no authority to go beyond the room occupied by Fatimo in the search, and, when they did this, they exceeded their authority, and, even if they had found liquor that belonged to Fatimo out in the yard, it would not have been admissible; and therefore the court erred in permitting the introduction of this liquor, and in permitting Dossett and Boyd to testify that they found...
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Lockett v. State
...designate the place to be searched and the person or thing to be seized. Miss. Const. Art. III, Sec. 23 (1890); Fatimo v. State, 134 Miss. 175, 98 So. 537 (1924); Cofer v. State, 152 Miss. 761, 118 So. 613 (1928). However, the long-standing exception to this general rule is that if the sear......
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Quan v. State
...v. State, 133 Miss. 753, 98 So. 233; State v. Watson, 133 Miss. 796, 98 So. 241; Loeb v. State, 133 Miss. 883, 98 So. 449; Fatimo v. State, 134 Miss. 175, 98 So. 537; Falkner v. State, 134 Miss. 253, 98 So. Butler v. State, 135 Miss. 885, 101 So. 193; Spears v. State, 99 So. 361; Sanders v.......
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... ... the affidavit thereinbefore, it should be construed to call ... for a search of the house and premises round about it ... Strangi ... v. State, 134 Miss. 31, 98. So. 340; Taylor v ... State, 134 Miss. 110, 98 So. 459; Fatimo v. State, 134 ... Miss. 175, 98 So. 537 ... With ... reference to the search of the premises of his neighbor, ... Watkins, there is nothing of which appellant can complain. No ... right of his was invaded by a search of the premises over ... which he exercised no control nor ... ...
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Strange v. State
...Lockett v. State, 517 So.2d 1317, 1325-26 (Miss.1987); Cofer v. State, 152 Miss. 761, 771, 118 So. 613, 616 (1928); Fatimo v. State, 134 Miss. 175, 179, 98 So. 537 (1924). Vaughn v. State, 136 Miss. 314, 319, 101 So. 439 (1924) concerned a warrant directing a search for whiskey in a certain......