John Livelar Co. v. State

Decision Date19 December 1910
Citation98 Miss. 330,53 So. 681
CourtMississippi Supreme Court
PartiesJOHN LIVELAR COMPANY v. STATE

October 1910

APPEAL from the circuit court of Holmes county, HON. J. M. CASHIN Judge.

Proceeding by the state to seize and destroy intoxicating liquors in which John Livelar & Company were claimants. From a judgment for the state, claimants appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Tackett & Elmore, for appellants.

The first error assigned is the overruling of the demurrer of appellants to the affidavit on which the search warrant was issued. If the demurrer had been sustained the search warrant would have been quashed and the liquors relieved from the levy.

Of the grounds set up in the demurrer, the following are relied on here:

1. The failure of the affidavit to allege that the whiskey was being kept for sale at the time referred to in said affidavit.

2. The failure of the affidavit to allege that affiant had reason to believe that said whiskey was being kept or offered for sale.

This proceeding is controlled by sections 1749, 1750 and 1751 of the Code of 1906. Said section 1749 was amended by chapter 115 of the Laws of 1908, but in no material particular so far as this case is concerned. This proceeding was instituted on April the 18th, 1908, while chapter 115 did not take effect until December 31st, 1908.

The statutes provide for the issuance of a search warrant, upon an affidavit to certain matters, to an officer commanding him to enter the place designated, by breaking, if necessary, and search and seize the liquors described. No provision is made in the Code for notice to any persons. If one claiming the liquors learns of the proceeding he may make proper affidavit and have the question of the legality of their possession tried. If the trial shows that the liquor was kept for criminal purposes, section 1748 divests them of all property character and they are ordered to be destroyed. If no person claims them within the time to which the writ is returnable not earlier than five days, the liquor shall be destroyed. A recent amendment to the above section provides for the giving of notice to said persons.

Our opinion is that the proceeding contemplated and invoked in this case is of strict right and must be pursued in strict compliance with the statutory terms. With regard to "Search and Seizure under Liquor Acts, " the principle that a forfeiture of property can only be authorized when all the formalities of law are complied with in the search, seizure and forfeiture proceedings is generally recognized.

Though the proceedings under these statutes appear to assimilate more nearly to civil actions in form, they are in their nature criminal rather than civil. 25 Am. and Eng. Ency. Law 1512.

Chief Justice Shaw in Fisher v. McGirr (Massachusetts), 61 Am. Dec. on page 395, refers to a proceeding of this kind as being "In a high degree penal in its operation and consequence."

"The process of search, seizure and forfeiture is subject to strict construction, and to enforce forfeiture in forfeiture proceedings the most rigid compliance with the law is required." 35 Cyc. 1269, and citations in note 39.

"No search warrant can be lawfully issued except in the and with the formalities prescribed by law." 19 Enc. Pl. and Pr. 325.

In view of the above authorities, of the provisions of the three Code sections and of the analogies of the law, are we not warranted in insisting that a strict and formal compliance with the statutes must be had before a house can be broken into and property seized and before the claimant of the property can be called on to defend the same, if he desires to prevent its destruction?

In the present case, the terms of the statute were not even substantially complied with. The affidavit merely alleged that the whiskey "Is intended for sale by said McClurg in violation of the law." It does not allege that it was "being kept for sale, " or that it was "being offered for sale" as the statute requires and as pointed out in the demurrer.

Carl Fox, assistant attorney-general, for appellee.

The appellants filed a demurrer to the affidavit, and the grounds of the demurrer relied upon in this court are:

First. The failure of the affidavit to allege that the whiskey was being kept for sale, at the time referred to in this affidavit.

Second. The failure of the affidavit to allege that affiant had reason to believe that said whiskey was being kept or offered for sale.

I can see no merit in the second ground, and shall not reply to appellant's argument thereon.

The affidavit, in short, is as follows:

".... J. P. Minyard .... makes affidavit on information and belief, that the whiskey in the depot at West, in district No. 2, in Holmes county, Mississippi, consigned to J. B. McClurg, on or about the 18th day of April, 1908, is intended for sale by said McClurg, in violation of law ...." The language of the statute (section 1749) is "being kept or offered for sale."

Counsel for appellant complain of the refusal of the court to grant instructions numbers 1 and 2, asked by appellants (claimants below), being in substance, that the state must prove that the liquors were being kept for sale in violation of law." Instruction number 4 granted by the court for claimants, was that the jury should find for the claimants, "unless they believed from the evidence that the whiskey seized in this case was being kept or intended for sale, or intended to be offered for sale by J. B. McClurg, in violation of law at the time of the seizure . . ."

Another instruction was given by the court, presumably for the state, that the jury should find for the plaintiff if they believed that the whiskey was "by the said McClurg intended to be sold unlawfully."

It appears, therefore, that the same point is made as to the instructions as is relied on in argument on demurrer, which is, that the instructions should have been that the jury must believe from the evidence before...

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17 cases
  • Loeb v. State
    • United States
    • Mississippi Supreme Court
    • December 31, 1923
    ...the issuance of a search warrant unless it uses the words of the statute or words of similar import." Stated in another way the court in the Livelar case held that if affidavit did use the words of the statute or words of similar import, then it would be sufficient. For authorities from oth......
  • Bradley v. State
    • United States
    • Mississippi Supreme Court
    • December 31, 1923
    ... ... justice of the peace violating a plain mandate of the ... statute. See Code 1906, sec. 1749 Hemingway's Code, ... section 2088, J. Livelar & Company v. State, 53 So ... 681; U. S. v. Franzione, 286 F. 771, and other ... authorities. Therefore, the still and liquors having been ... ...
  • Williams v. State
    • United States
    • Mississippi Supreme Court
    • July 10, 1922
    ... ... Rep. 313; Wyoming v. Theodore Peterson and Chas ... Romano, 194 P. 13, A. L. R. 1284; Youman v ... Commonwealth of Ky., 224 S.W. 860; Livelar v ... State, 53 So. 681; State v. Marshall, 100 Miss ... 626; U. S. F. & G. Co. v. State, 121 Miss. 369; ... Banfill v. Byrd, et al., 122 Miss ... ...
  • Reynolds v. State
    • United States
    • Mississippi Supreme Court
    • October 13, 1924
    ... ... and seizures must be strictly construed against the state ... Turner v. State (Miss.), 98 So. 240; Livelar v ... State, 98 Miss. 330, 53 So. 681. The legislature agreed ... with us in this view because at its 1924 session, chapter ... 244, Laws of ... and officers testified clear-cut and unequivocally as to the ... still itself ... In ... John v. State, 95 So. 84, the opinion of the witnesses ... went directly to the fundamental issue there before the ... court, to-wit: the identity of ... ...
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