Goss v. State

• Decision Date: 11 December 1939
• Docket Number: 33738
• Citation: 192 So. 494,187 Miss. 188
• Court: Mississippi Supreme Court
• Parties: GOSS v. STATE

192 So. 494

187 Miss. 188

GOSS v. STATE

No. 33738

Supreme Court of Mississippi, Division B

December 11, 1939

Suggestion Of Error Overruled January 8, 1940.

APPEAL from circuit court of Attala county HON. JNO F. ALLEN, Judge

Velma Goss was convicted of unlawful possession of intoxicating liquors, and he appeals. Affirmed.

Judgment of conviction affirmed.

D. H Glass and G. S. Landrum, both of Kosciusko, for appellant.

It was the contention of appellant, in the lower court, and is still his contention that the state did not make out a case against him on competent evidence. In other words, the evidence obtained was secured in an unlawful manner; that the information acted on by the deputy sheriff was not the kind of information that would warrant this officer in making the affidavit for a search warrant.

McGowan v. State, 185 So. 826.

Appellant respectfully submits that the law was not complied with in proving the credibility of statements made by Woodrow Peavy. The deputy sheriff did not know his reputation, and as stated in McGowan case, some officers are very easily led to believe any statement. The proof presented by the state did not comply with the rule laid down in the McGowan case, and the court erred in refusing the motion for a peremptory instruction and the court also erred in overruling the objections made by appellant as to the admissibility of the evidence as to what was found in the way of intoxicating liquors in the home of the appellant.

W. D Conn, Jr., Assistant Attorney-General, for the State.

This case raises precisely the same question as was raised in the case of Velma Goss v. State, 192 So. 447. A search warrant was issued on an affidavit therefor. Upon the search liquor was found. At the trial defendant undertook to go behind the affidavit to determine the character of information upon which the officer acted in making his affidavit for a search warrant. We think this was wholly unwarranted under the decisions of this court in Mai v. State, 152 Miss. 225, 119 So. 177; Sykes v. State, 157 Miss. 600, 128 So. 752; Castellucio v. State, 165 Miss. 516, 146 So. 599.

The McGowan case, 185 So. 826, is no authority for appellant's position. That was a case where an automobile was searched without a search warrant, but upon an asserted existence of probable cause. We do not think that the decision in the McGowan case in any manner modifies or qualifies the rule laid down and enforced in the three cases above cited.

Argued orally by Scott Landrum, for appellant, and by W. D. Conn, Jr., for the State.

OPINION

Ethridge, P. J.

Velma Goss was convicted of the unlawful possession of intoxicating liquors, and sentenced to pay a fine of $ 250, and serve thirty days in the county jail; from which conviction this appeal is prosecuted.

A large part of the evidence was obtained by a search warrant which was issued by a justice of the peace of the county, upon an affidavit made by a county officer, known to be a credible person, who said on oath that he had reason to believe and did believe that intoxicating liquors were being: "(1) Stored, kept, owned, controlled for purposes of sale in violation of law, (2) Sold or offered for sale in violation of law, . . . (4) Attempted to be manufactured or distilled in violation of law, (struck out) (5) Attempted to be transported in violation of law, in the residence, outhouse barn, stalls, smokehouses, crib, and in the field, yard and garden and wood near the residence of V. G. Goss in the 1st district of said Attala County, Mississippi, and on Section 29, Township 14, Range 7 in said Attala County, Mississippi, and more particularly described as follows: . . . (Description of the premises set forth), " Return on the warrant was made, as follows: "I have executed the within writ personally by delivering a true copy of this writ to V. G. Goss and searching his premises and finding whiskey in his possession and under his control and further executed by arresting the within named V. G. Goss, and releasing him...