Harvey v. State
| Decision Date | 20 May 1933 |
| Citation | 60 S.W.2d 420 |
| Parties | HARVEY v. STATE. |
| Court | Tennessee Supreme Court |
Appeal from Circuit Court, Haywood County; W. W. Bond, Judge.
J. M. Harvey was convicted of the unlawful possession of liquor, and he appeals.
Reversed.
Hugh L. Clarke, of Brownsville, for appellant.
W. F. Barry, Jr., Asst. Atty. Gen., for the State.
The defendant was convicted of the unlawful possession of liquor, fined $100, and given a jail sentence of sixty days.
The evidence upon which the conviction rests came as the result of a search made under a search warrant. Objection was taken to the admission of such proof, and we think that the evidence was improperly admitted; that the search warrant was unlawfully issued and the ensuing search unauthorized.
The warrant appears to have been issued on December 26, 1932. Such is the date it bears. The affidavit upon which the warrant issued bears date of December 27, 1932. The return on the warrant is dated December 28, 1932.
According to the face of the papers, the warrant was issued before the affidavit was made. A search warrant can only be issued on probable cause, supported by affidavit. Code, § 11899.
The state introduced the magistrate who issued the warrant, and this official was permitted to testify, over the objection of defendant, that the affidavit was made and the warrant issued at the same time, and that the date, December 27, 1932, on the affidavit was a clerical error.
We think this testimony of the magistrate was inadmissible. It has been settled in Tennessee since Bank of Tennessee v. Patterson, 27 Tenn. (8 Humph.) 363, 47 Am. Dec. 618, that the verity of a record cannot be impeached by testimony aliunde. This rule has been applied to proceedings before a magistrate preliminary to the issuance of a search warrant. Bragg v. State, 155 Tenn. 20, 290 S. W. 1; Reed v. State, 162 Tenn. 643, 39 S.W.(2d) 749.
The case before us falls under the authority of Watt & Co. v. Carnes, 51 Tenn. (4 Heisk.) 532. An attachment was issued in that case on February 15, 1868. The affidavit was not signed by the plaintiff nor certified as having been sworn to by the clerk of the court. The clerk later discovered this omission, and on March 2, 1868, procured the plaintiff to sign the affidavit and inserted the date March 2. On the hearing the clerk testified it was not his habit to issue attachments without swearing parties to affidavits — this tending to show that the affidavit before the court had in fact been sworn to before the writ of attachment issued. The court s...
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...oath before an authorized magistrate.'" Keith, 978 S.W.2d at 869 (quoting Watt v. Carnes, 51 Tenn. 532, 534 (1871)); see Harvey v. State, 60 S.W.2d 420, 421(Tenn. 1933). A "document, without a signature or oath, does not commit its purported author to any of the substantive statements it co......
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...an affidavit or affidavits sworn to before the magistrate and establishing the grounds of issuing the warrant."10 In Harvey v. State, 166 Tenn. 227, 60 S.W.2d 420 (1933) and in Watt, supra, the affidavits were not sworn nor signed until after the warrant or attachment had issued. Accordingl......
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...the issuance of a search warrant. Tenn. Code Ann. § 40-6-103; State ex rel. Blackburn v. Fox, 292 S.W.2d 21, 23 (1956); Harvey v. State, 60 S.W.2d 420 (1933). The affidavit must set forth on its face the facts which establish probable cause before a warrant may be issued. Tenn. Code Ann. § ......