Jordan v. State

• Decision Date: 09 June 1924
• Docket Number: 23902
• Citation: 100 So. 384,135 Miss. 785
• Court: Mississippi Supreme Court
• Parties: JORDAN v. STATE. [*]

100 So. 384

135 Miss. 785

JORDAN v. STATE. ^[*]

No. 23902

Supreme Court of Mississippi

June 9, 1924

Division B

CRIMINAL LAW. Evidence obtained by illegal search inadmissible.

In a liquor prosecution, evidence obtained as a result of a search of defendant's home without a warrant as required by Const. 1890, section 23, is not admissible.

HON. B S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

H. S Jordan was convicted of the unlawful possession of more than one quart of intoxicating liquor, and he appeals. Reversed and remanded.

Reversed and remanded.

Davis & Hill, for appellant.

The evidence obtained under the search warrant was inadmissible because the affidavit was made on information illegally obtained--extracted, so to speak, from the appellant, in violation of section 26 of the Constitution. These policemen were wholly without legal authority in forcing their way into appellant's home. They had no right to enter therein to arrest appellant for unlawful cohabitation without a warrant so to do; and likewise, they had no right, upon any theory, to enter therein to see if he was concubining with a negro woman.

An officer can never arrest for a misdemeanor without a warrant unless the misdemeanor is being committed in his presence, and certainly he cannot invade a man's home merely to see if the man is engaged in committing a misdemeanor. These officers were without authority of law from any standpoint to break into appellant's home. They had discovered the three gallon jars, opened them and smelled the contents; they had smelled liquor all over the house; had observed an empty bottle, a funnel and liquor on the hearth in appellant's bedroom, all of which knowledge they obtained by a forcible and illegal breaking into appellant's home. They had reason to believe, from these circumstances, that other whiskey was concealed in the house; in fact, Ethridge told the justice of the peace that he so believed, and yet all of this knowledge was obtained by him while he himself was violating the law.

The state cannot thus force a man to give evidence against himself in any such manner in order to obtain for itself evidence without which it could not make the required affidavit to authorize a search warrant. The initial wrong vitiates the whole proceeding. Tucker v. State, 90 So. 845; Silverthorne Lumber Co. v. U.S., 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.

But if we are mistaken in this view, then we submit that the verdict rests mainly upon evidence obtained without warrant. In fact, all of the circumstances connected with this transaction were discovered under the original search, except the actual finding of the twenty-eight coca cola bottles in the attic, and all the circumstances were developed on the trial of the case. At the close of the testimony of the witness Coates, a motion was made to exclude it for the reasons here being argued.

Affidavit without requiring the witness to hold up the right hand and without invoking the Deity is not an oath, and wholly insufficient to base a prosecution for perjury. No oath having been administered, the contents of the affidavit were not sworn to, and the justice, therefore, was entirely without jurisdiction to issue the warrant. The paper the witness signed was not a complaint on oath; it was nothing but a mere complaint. Husbands v. State, 105 Miss. 548, 62 So. 418; Carlisle v. Gunn, 68 Miss. 243, 8 So. 743.

The search warrant was also void because the premises to be searched were not sufficiently described. They were described as being at Mobile Street, said county and state, but the street number was omitted. Miller v. State, 93 So. 2.

Harry M. Bryan, Assistant Attorney-General, for the state.

We have examined the transcript very carefully and while the proof is overwhelming, we are frank to state to the court that under recent decisions we believe the conviction cannot be sustained because of evidence improperly admitted.

The Tucker case, 90 So. 845 (followed by the Owens case and many others) impels us to this conclusion. The evidence shows that the two policemen, who searched the home of defendant did so without first obtaining a search warrant. The evidence does not show that they were invited. On the contrary, it appears to be established that they were told by the defendant not to enter without a search warrant. The testimony shows that after the officers had found certain quantities of liquor in the home of defendant they then procured a search warrant and in his absence returned,...