Johnson v. State

• Decision Date: 07 March 1927
• Docket Number: 26215
• Citation: 146 Miss. 593,111 So. 595
• Court: Mississippi Supreme Court
• Parties: JOHNSON v. STATE. [*] SAME v. CITY OF WATER VALLEY

111 So. 595

146 Miss. 593

JOHNSON v. STATE. ^[*]

SAME v. CITY OF WATER VALLEY

No. 26215

Supreme Court of Mississippi

March 7, 1927

Division A

SAME v. CITY OF WATER VALLEY. (Division A.)

1. SEARCHES AND SEIZURES. Affidavit and search warrant held to sufficiently describe premises.

Description in affidavit and warrant for search of "premises of J---, located on H--- street, in city of ---, Miss.," held sufficiently accurate.

2. SEARCHES AND SEIZURES. Search warrant may be made returnable before police justice, residing outside district of justice of peace taking affidavit and issuing warrant.

It is immaterial that search warrant was made returnable before a police justice, who resided outside the district of the justice of the peace who took the affidavit and issued the warrant.

3. SEARCHES AND SEIZURES. Search held not illegal because participated in by justice who took affidavit and issued warrant.

Search is not illegal because the justice, who took affidavit and issued warrant, participated in the search with the officers the warrant not being served by him, but by the marshal.

4. SEARCHES AND SEIZURES. Search, being continuous, held not void because of officers going over a second time.

Search was not void because the officers went over the building a second time, it not having been previously abandoned or completed, but being continuous.

5 STATUTES. Sentence for unlawful possession of liquor should be imposed, under statute in force prior to unconstitutional statute of 1922 (Laws 1922, chapter 210, sections 1, 2).

Laws 1922, chapter 210, sections 1, 2, being unconstitutional and void, sentence for unlawful possession of liquor should be imposed under the statutes theretofore existing and in force.

HON. GREEK P. RICE, Judge.

APPEAL from circuit court of Yalobusha county, second district, HON. GREEK P. RICE, Judge.

Joe Johnson, on prosecutions by the state and by the city of Water Valley, was convicted of unlawful possession of intoxicating liquors, and he appeals. City case affirmed; state case affirmed, except as to sentence, and remanded for proper sentence.

Wade H. Creekmore, for appellant.

I. The description embodied in the search warrant is insufficient to meet the constitutional and statutory requirements of law and any search based on this warrant was, therefore, void. Hendricks v. State, 144 Miss. 87, 109 So. 263; State v. Rignall, 134 Miss. 169; State v. Moore (Miss.), 24 So. 308; Morton v. State, 136 Miss. 284, 101 So. 379; Cornelius on Search & Seizure, 348.

II. A justice of the peace issuing a search warrant cannot serve or execute the same warrant and, if he does so, the proceedings are void. Sections 2230-31, Hemingway's Code; 32 Cyc. page 451; McDugle v. Filmer, 79 Miss. 53; Arnold & Jemison v. Wynne, 26 Miss. 337; Sanford v. Edwards, 19 Mont. 56; A. S. R. 42; Cornelius on Search & Seizure, section 149, page 372.

III. Search warrant invalid because issued by justice of the peace of supervisor's district No. 3 when there was an acting justice of the peace in District No. 2, in which district defendant lived and in which district the search was made. Section 2223, Hemingway's Code; section 171, Mississippi Constitution; 73 Miss. 1.

IV. Search on which conviction is based was void because officers had already searched the place under the only warrant they had and could not make repeated searches under the same warrant. Cornelius, Search & Seizure, page 363.

V. An excessive sentence was imposed upon the defendant. Section 2163-B, Hemingway's Code, supplement of 1921; Gann v. State, 110 So. 439 (Miss.), which is decisive of this question. In the case before the court the sentence imposed upon the defendant carries a greater penalty than the maximum penalty prescribed under the general statute.

W. A. Scott, Jr., Special Agent, for the state.

The appellant contends that a variance exists between the affidavit and warrant in that the affidavit describes the premises to be searched as "at his residence and where he now lives," while the warrant fails to limit the description to appellant's residence. We do not think that this omission creates a material variance, because the warrant, even with this omission, accurately describes the property as "in or on the premises of Joe Johnson, located on Haynes street in the city of Water Valley, Mississippi." It is true that both the affidavit and warrant must specifically describe the property to be searched. Morton v. State, 101 So. 379, 136 Miss. 284. The description required, however, is not the technical description of a deed of conveyance, but any description is sufficient that enables the officer with reasonable certainty to locate the place to be searched and sufficiently enables the occupant of the premises to know, from the warrant, the place the officer is directed to search. Loeb v. State, 133 Miss. 884, 98 So. 449; Matthews v. State, 134 Miss. 807, 100 So. 18; Borders v. State, 138 Miss. 788, 104 So. 145; Bradley v. State, 98 So. 458, 134 Miss. 20.

The description may be one used in the locality and known to the people, if it is sufficiently suggestive that an officer by reasonable inquiry, may locate with certainty the place. Bradley v. State, 98 So. 458, 134 Miss. 20. We think, therefore, that no variance exists because of the omission in the warrant of the words "at his residence, etc."

The appellant cites several cases to the effect that a warrant directing a search of a person's promises is too vague and indefinite to meet the constitutional requirement of a specific description. However, the cases merely hold that a warrant directing the search of a person's premises is void when the word "premises" is used without any other description and without any words of occupancy or use. Rignall v. State, 98 So. 444, 134 Miss. 169. In the present case both instruments limit the word "premises" to that of Joe Johnson, located on Haynes street in the city of Water Valley, Mississippi.

Appellant also complains because the justice of the peace who issued the warrant was a member of the party that searched appellant's home. The warrant was in fact handed to the constable and was executed by him, who returned it to a justice of the peace in a district other than that in which it was issued. The fact that the issuing justice was a member of the searching party and did find the evidence does not invalidate the search as he was not executing his own writ, but was merely assisting in the search as he had a right to do. The appellant cannot be prejudiced because the writ was not made returnable to the justice participating in the search, but to a justice in another district.

The warrant was not void because issued by a justice of the peace in District No. 3 for search of premises located in District No. 2. Each justice of the peace has jurisdiction concurrent with his county insofar as issuing writs is concerned. The constitution does not prohibit this jurisdiction, but used the word in the sense that no justice of the peace can take jurisdiction of a cause on its merits except it arise in his particular district.

Under Mike Buford v. State, Miss. , 111 So. 850, which held chapter 210, Laws of 1922, to be unconstitutional, we request that the case be affirmed on its merits, but reversed for proper sentence.

OPINION

MCGOWEN, J.

Appellant, upon indictment, was convicted in the circuit court of the Second district of Yalobusha county, for unlawfully having in his possession intoxicating liquors, and was fined five hundred dollars, and sentenced to ninety days' imprisonment.

The main objection here urged by the appellant is that the affidavit and search warrant, used as a basis for the search of Joe Johnson's house, is invalid. The material part of the affidavit is as follows:

That appellant had in his possession intoxicating liquors "in or on the premises of Joe Johnson, located on Haynes street, in the city of Water Valley, Miss., between Cemetery street and Calhoun street, and on the said Haynes street, in the city of Water Valley, Miss., at his residence and where he now lives, and to search all the rooms in said dwelling house, and all outhouses and all other places on said premises in said county and state;" and the affidavit prays that a warrant issue, "directing a search of the above-mentioned premises of the said Joe Johnson, and a seizure," etc.

That part of the warrant, to which complaint is...