Faulk v. State

• Citation: 127 Miss. 894,90 So. 481
• Decision Date: 01 October 1921
• Docket Number: 22199
• Court: United States State Supreme Court of Mississippi
• Parties: FAULK v. STATE

90 So. 481

127 Miss. 894

FAULK v. STATE

No. 22199

Supreme Court of Mississippi

October 1, 1921

APPEAL from circuit court of Walthall county, HON. D. M. MILLER Judge.

Ben Faulk was convicted of manufacturing intoxicating liquors and sentenced to the penitentiary for two years, and he appeals. Affirmed.

Affirmed.

J. M Alford and E. J. Simmons, for appellant.

It is submitted that section 1749, Code of 1906, as amended by chapter 115, page 116, Laws 1908, is the sole warrant and authority, in view of section 23, Constitution 1890, for the issuance of a search warrant in aid of the suppression of the crime of possessing, selling or manufacturing spirituous and intoxicating liquors. It is submitted further that the decisions of this court are in perfect harmony in holding that statutes authorizing searches and seizures, must be strictly construed and that the procedure prescribed by the statute must be strictly and literally followed. Certainly the affidavit must not only conform to the statute but must clearly and definitely, either in the words of the statute or in words of the same import, charge the offense denounced. The power is expressly limited to the things enumerated in the affidavit and the places therein described and the search must be made within a reasonable time. See Livelar & Co v. State, 98 Miss. 330, 53 So. 681, citing 25 Am. & Eng. Enc. Law (2 Ed.), 151-152, and the court will compare the language employed in the affidavit there criticised with the language employed by the sheriff, under the authority which he claims to have been delegated to him by a justice of the peace of his county.

Again, it is perfectly plain under the decisions of our court, that the warrant must, in all essentials, conform to the affidavit which is the basis of the proceeding and it is submitted, that even a casual reading of the affidavit and warrant in the case at bar, demonstrates that the warrant as drawn, does not, in its essentials, conform to the affidavit. It is further submitted that the justice of the peace could not leave the particular district for which he was elected, go to Tylertown and there take the affidavit of the sheriff for a search warrant in skeleton form and delegate to him the power to write into this nullity, which is called a blank affidavit, the names of persons and places to be searched and the things to be seized, because the official acts of a justice of the peace must be performed in the district of his jurisdiction by himself. Sanders v. Erwin, 2 How. 732. And the judicial act of taking affidavits could not be delegated to the sheriff or any other person, nor could the sheriff, in imitation of the newly elected justice of the peace, who, lacking the requisite fee for his qualifications, stood before a looking glass and administered the oath of office to himself. Manifestly the search warrant was not supported by an oath duly administered to a credible person by an authorized officer as required by law and it certainly cannot be said, in view of the official character of the sheriff and his assistants, all of whom were armed, that appellant consented to the search. See as supporting the above statements, Banfil v. Byrd, 122 Miss. 288, 84 So. 227; Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590; U. S. Fidelity Co. v. State to use, sec., 121 Miss. 369, 83 So. 610.

That evidence of the possession of the property seized, secured by an unconstitutional search of his premises without a search warrant, is not admissible against appellant in this case, see Youman v. Commonwealth, 224 S.W. 860, 13 A. L. R. 1303, and see U. S. v. Sluser, 270 F. 918; Amos v. U.S. 41 Sup. Court Rep. 266; Gouled v. U.S. 41 S.Ct. 61.

H. Cassedy, Special Assistant Attorney-General, for the state.

1. The prohibition of the Fourth Amendment to the Constitution of the United States applies only to federal officers and agents. Weeks v. U.S. 232 U.S. 383, 58 L.Ed. 652; National Safe Deposit Co. v. Stead, 232 U.S. 58, 59 L.Ed. 504; State v. Peterson (Wyo.) 194 P. 342. 2.

2. Sec. 23, Constitution of Mississippi, does not prohibit reasonable searches and seizures. A search and seizure without warrant is not unreasonable where the consent of the owner of the premises is first obtained. A person may waive his constitutional privilege of freedom from search and seizure without warrant. The following is quoted from 24 R. C. L., par. 27, page 723:

"27. Voluntary submission to search and seizure.--The dwelling of every person while he is in the lawful possession thereof is his castle, and it ought not to be subjected to an uninvited search, except by a duly qualified officer and then only in pursuance of a valid writ commanding it. Such searches are usually made without the consent of the occupant of a domicile, and, the investigation being a proceeding invitum the statute authorizing it is to be strictly construed, and no presumptions of regularity are to be invoked in aid of the process under which a proper officer obeying its commands undertakes to justify. However, one who consents to have his property searched by an officer without a warrant has no right of action as for an illegal search. And this consent need not be obtained from the owner of the property, as it is sufficient if it come from a member of his family or his duly authorized agent or servant in possession of the property at the time. Thus the consent of the owner's wife to search the property of her husband waives any claim that he might have against...