Goss v. State
| Decision Date | 11 December 1939 |
| Docket Number | 33737 |
| Citation | 192 So. 447,187 Miss. 72 |
| Court | Mississippi Supreme Court |
| Parties | GOSS v. STATE |
Suggestion Of Error Overruled January 8, 1940.
APPEAL from circuit court of Attala county HON. JNO. F. ALLEN Judge.
Velma Goss was convicted of having intoxicating liquor in his possession, and he appeals. Affirmed.
Affirmed.
D. H Glass and G. S. Landrum, both of Kosciusko, for appellant.
It is the contention of appellant, Velma Goss, that the opinion handed down in the case of McGowan v. State in 185 So. 826 controls this case. In the McGowan case one Daniels told the constable and sheriff that McGowan was to bring some liquor through Jefferson Davis County, and these officers made a search of McGowan's car and found the liquor, the search being made without a search warrant. The court reversed and remanded the McGowan case for the reason that the information received by the officer was not such information as would justify such search; that the information had to be received from a person who knew what was told to be true and who was a credible person worthy of belief of such nature as to convince an ordinarily reasonable man that he was telling the truth. The record showed that Daniels was a confirmed bootlegger and had been convicted numbers of times for violation of the liquor laws. In this case now before the court, one Singleterry told the deputy sheriff that appellant unlawfully possessed intoxicating liquors, and on this information an affidavit for search warrant was sworn to and a search warrant issued to search the premises of appellant herein. The proof showed that Singleterry was a confirmed bootlegger and had been fined numbers of times for violating the liquor laws. Under the cases cited in the McGowan opinion, the information must be within the knowledge of the informant and must amount to probable cause before a legal search warrant can issue. Mere rumor does not constitute probable cause and is not sufficient. The law requires the same positive information from a credible person to authorize the issuance of a search warrant, as is necessary to make a search without a search warrant. The facts given the officer must be shown to have been within the knowledge of the informant and the record of testimony in the case must affirmatively show this fact. In addition to the failure of the state to show that Singleterry, the informant, knew that appellant had the liquor and that he was a credible person whom any reasonable person would believe, the appellant showed by E. C. Spain, a merchant in Kosciusko that Singleterry's reputation for truth and veracity in this community, at that time, was bad. This evidence of his reputation was in addition to the fact that the deputy sheriff testified that he had been in court several times for violating the liquor laws; in fact, at that very term of court, the informant, Singleterry, had pleaded guilty to possessing unlawfully intoxicating liquors.
The appellant submits that the search was not authorized and any evidence obtained by reason thereof is incompetent and that the court erred in overruling the timely objections of appellant in the lower court and the court also erred in overruling the motion of appellant to exclude the testimony and in refusing the instruction requested by appellant to direct the jury to return a verdict of not guilty.
W. D Conn, Jr., Assistant Attorney-General, for the State.
In the case at bar an officer made an affidavit for a search warrant and procured one for the search of appellant's residence. The search was made and liquor was found. At the trial defendant sought to show that the information upon which the officer acted was not sufficient. He relies on the McGowan case, 185 So. 826. The trial court, acting on this decision, required the state to show what information the officer had and from whom he got it prior to the time he made his affidavit for a search warrant. We think appellant and the trial court have misconceived the effect of the decision in that case. There was a search of an automobile without a warrant, but upon alleged probable cause. The court examined the facts of this case and held that probable cause for such search did not exist. We do not construe the McGowan decision as in any wise overruling or modifying the rule heretofore adopted and enforced in this state to the effect that when a search warrant has been issued, such issuance is a conclusive adjudication of the existence of probable cause and cannot thereafter be inquired into.
Mai v. State, 152 Miss. 225, 119 So. 177; Sykes v. State, 157 Miss. 600, 128. So. 753; Castellucio v. State, 115 Miss. 516, 146 So. 599.
Argued orally by Scott Landrum, for ap...
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