Hendricks v. State

• Decision Date: 15 June 1926
• Docket Number: 25535
• Court: Mississippi Supreme Court
• Parties: HENDRICKS v. STATE. [*]

109 So. 263

144 Miss. 87

HENDRICKS v. STATE. ^[*]

No. 25535

Supreme Court of Mississippi

June 15, 1926

Division B

Suggestion of Error Overruled July 31, 1926.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Ella Hendricks was convicted of having in her possession intoxicating liquors, and she appeals. Affirmed.

Affirmed.

Briefs filed for appellant by C. O. Jaap, and Geo. L. Teat, and for the State by Rufus Creekmore, Special Assistant Attorney-General.

OPINION

ANDERSON, J.

Appellant was indicted and convicted in the circuit court of Hinds county, sitting in and for the First district of said county, of having in her possession intoxicating liquors, and fined the sum of one hundred dollars, and sentenced to sixty days' imprisonment. From that judgment she prosecutes this appeal.

The evidence upon which appellant was convicted was secured by virtue of a search of her home and premises. Appellant contends that the search warrant was void, and therefore the search illegal for the following reasons: (1) Because of a discrepancy between the date of the affidavit for the search warrant and the date of the issuance of the search warrant. The affidavit for the search warrant was dated July 4, 1925, while the search warrant itself was dated July 3, 1925. (2) Because the search warrant commanded the officer making the search to "bring the liquor, if practicable, before me at my office," while the statute (subdivision 4 of section 1, chapter 244, Laws of 1924) requires that the officer seizing the liquor "shall hold the same until disposed of by law." (3) That the search warrant was void because it authorized the search of the person of appellant; and (4) the evidence was insufficient to sustain the conviction. We will consider appellant's contentions in the order stated.

(1) The discrepancy between the date of the affidavit and the date of the search warrant: The issuance of a search warrant is a judicial finding by the officer issuing the warrant of the necessary facts set forth in the affidavit therefor. It is an adjudication by the officer issuing the warrant that there is probable cause for the search sought to be made. Loeb v. State, 133 Miss. 883, 98 So. 449. It was recited in the search warrant involved that the affidavit upon which it was based was made on the day the search warrant was issued. In addition to that, the affidavit and search warrant laid down side by side show by their recitals in unmistakable terms that the latter was the outgrowth of the former. The description of the places and things to be searched in each are identical, except the search warrant following the form laid down in the statute authorized the search of appellant's person. They both show that the affidavit was made by the constable, Hamp Simmons; that the affidavit was made before O. H. Flowers the justice of the peace who issued the search warrant, and the places and things to be searched in both are described as being "near Hardie's store on Gallatin street...