Goffredo v. State

• Decision Date: 31 January 1927
• Docket Number: 26291
• Citation: 145 Miss. 66,111 So. 131
• Court: Mississippi Supreme Court
• Parties: GOFFREDO et al. v. STATE. [*]

111 So. 131

145 Miss. 66

GOFFREDO et al. v. STATE. ^[*]

No. 26291

Supreme Court of Mississippi

January 31, 1927

Division B

1. SEARCHES AND SEIZURES. In absence of motion to quash affidavit and search warrant not describing affiant as credible person, and proof in reference thereto, warrant will be held valid.

While a search warrant issued upon an affidavit that affiant has reason to believe and does believe that intoxicating liquors are possessed, etc., by a named person does not describe affiant as being a credible person, yet the officer who issued the warrant on such affidavit was assumed to have adjudged affiant to be a credible person, and where there is no motion to quash the affidavit and warrant on the ground that he was not a credible person, and there is no proof in reference thereto, the warrant will be held valid.

2. SEARCHES AND SEIZURES. In absence of statutory restrictions justice of peace in one district of county may issue warrant returnable before justice of another district (Laws 1892 chapter 93, section 15; Hemingway's Code, section 2223).

Where a county is divided into two judicial districts, and there are no restrictions in the act dividing the county into two judicial districts, prohibiting a justice of the peace from issuing a warrant to be served and returned before another justice of the peace of another judicial court district said justice of the peace may so issue such warrant under section 2223, Hemingway's Code (section 2724, Code of 1906) providing that justices of the peace may issue any process to be executed in any part of the county, etc., citing Falkner v. State, 134 Miss. 101, 98 So. 345.

3. INTOXICATING LIQUORS. Officers searching premises under warrant may seize liquor seen in possession of owner's wife and give evidence against her.

Where a search warrant has been issued to search the premises of a named person, and a search is made under such warrant and liquors found in such premises, and the wife of the owner while the search is going on, takes a bottle of intoxicating liquor and undertakes to secrete it, said bottle being visible to the officers present, they may seize such intoxicating liquor and give evidence against the wife in reference thereto.

4. CRIMINAL LAW. Court during term may set aside, order of servance entered on minutes and try parties jointly; conviction of parties indicted jointly will not be disturbed because order setting aside order of severance was not formally entered on minutes.

Where two persons are jointly indicted for a misdemeanor, and an order of the court is entered ordering a severance, and such order placed on the minutes, the court may thereafter during the term set aside such order and try said parties jointly, and the conviction will not be disturbed because of the order of the court setting aside the order of severance was not formally entered upon the minutes.

5. CRIMINAL LAW. Juror's becoming intoxicated during night during separation of jury is not cause for setting aside conviction for misdemeanor.

Where in trying the parties for a misdemeanor the jury is permitted to separate over night and disperse, and during such separation one of them becomes intoxicated, but is sober when the trial is resumed the following morning, and there is nothing to show that they discussed the case, or that defendant was in any manner prejudiced by his getting drunk, and it does not appear that he was in any way incapacitated during the remainder of the trial, the court will not set aside the judgment for this mere breach of propriety on the part of said juror.

HON. WM. A. ALCORN JR., Judge.

APPEAL from circuit court of Coahoma county, First district, HON. WM. A. ALCORN JR., Judge.

Felice Goffredo and Mrs. Felice Goffredo were convicted of the unlawful possession of intoxicating liquor, and they appeal. Affirmed.

Judgment affirmed.

Brewer & Brewer, for appellants.

I. The defendants should not have been tried jointly after a severance had been granted by the trial court. No order was ever entered setting aside the order which granted a severance. In other words, the defendants were forced into a joint trial when at the time there appeared on the minutes of the court a solemn and binding order to the effect that they should be tried separately and not jointly. We submit that the court had no right to order a joint trial of the defendants until after the order granting the severance had been set aside by an order entered on the minutes of the court. In this connection, see McCarty v. State, 56 Miss. 294, in which it will appear that the court is governed by the minutes and by the minutes alone.

II. The court erred in refusing to sustain the motion to quash the search warrant for the reason that said search warrant was addressed to any lawful officer of Coahoma county, which is not in accordance with the law, and no motion was made to amend the search warrant. See Matthews v. State, 100 So. 18.

The proof in the case shows conclusively that the principal search was made by two deputy United States marshals, and that all the evidence obtained was obtained by these deputy United States marshals rather than by any lawful officer of Coahoma county.

III. The court erred in refusing to sustain the motion to quash the search warrant for the reason that in the affidavit asking for the search warrant it was not alleged that Oliver Johnston, or O. H. Johnston, was a credible person.

This court has held in numerous decisions that the affidavit for a search warrant must not only state that the person making the affidavit has reason to believe, but must further state that he does believe, Morrison v. State, 105 So. 479.

The affidavit in this case does not refer to O. H. Johnston as a credible person. The search warrant in this case does not adjudicate or decide that Oliver Johnston was or is a credible person. The defect is fatal. One of the most essential things required by the statute has been omitted.

IV. It was error for the court to overrule the motion to quash the search warrant on the ground that the purported affidavit for the search warrant was made before R. E. Stratton, Sr., a justice of the peace of Beat 4, Coahoma county, which said Beat 4 is in the second judicial district of the county, the offense being alleged to have been committed in the town of Friars Point which is in the first judicial district of the county.

Stratton, a justice of the peace in the second judicial district of Coahoma county had no more right to issue the search warrant in question than he would have had to issue a search warrant returnable before some justice of the peace in an adjoining county.

V. The court should not have permitted the witness Hendrix to testify about the whisky which he claimed was taken away from Mrs. Goffredo by Mr. Snyder. It cannot be contended that either one of these federal officers had the right to search the person of Mrs. Goffredo and take whisky away from her, and any and all evidence obtained by such search is incompetent and inadmissible. Robinson v. State, 108 So. 903; Bates v. State, 109 So. 730.

VI. The court erred in permitting testimony showing a possession of whisky by Mrs. Felice Goffredo separate and apart from Felice Goffredo and without his knowledge. The court will please bear in mind that the defendants at all times insisted on separate trials. The defendants at all times objected to all testimony showing separate possession.

The law seems to be clear that where two persons are jointly charged with an offense that it is improper to show a separate possession of one of the parties over the objection of the other party. Wheeler v. State, 76 Miss. 265.

VII. Intoxicated Jurors. At least two of the jurors who convicted these old people became intoxicated during the progress of the trial. The lower court was of the opinion that this intoxicated condition of the jurors would not warrant the granting of a new trial unless the defendants could introduce positive affirmative proof to the effect that they were injured thereby. Of course, the only proof the defendants could offer was that the jurors were drunk, and then leave it to the court as to whether or not such conduct on the part of the jurors was such as to demand the setting aside of the verdict and the granting of a new trial. Brown v. State, 45 A. S. R. 180.

The case should be reversed and remanded.

W. A. Scott, Jr., Special Assistant Attorney-General, for the state.

I. The appellants strenuously contend that the search warrant is void because issued in the second judicial district and made returnable to the first judicial district. This court on several occasions has held that any justice of the peace has authority to issue a search warrant to be executed in any part of his county. Falkner v. State, 98 So. 345, 134 Miss. 101; Bufkin v. State, 98 So. 452, 134 Miss. 1; Reynolds v. State, 101 So. 485, 136 Miss. 329; Dawsey v. State, 100 So. 526, 136 Miss. 18.

II. The search warrant was addressed to any lawful officer of Coahoma county and the appellants maintain that for this irregularity the warrant is void. It will be noticed from the evidence, however, that this warrant was handed to the sheriff who duly executed it by searching the premises specified therein. We do not think that this irregularity vitiates the search. Matthews v. State, 100 So. 18.

III. The appellants further complain because the affidavit did not state that O. H. Johnston was a credible person. The affidavit does not have to make this allegation. It would be useless for the law to require an affiant to swear that he is a credible person, because no one falls so low that he believes himself otherwise. While the warrant itself did not expressly state that O. H. Johnston is...