Kelly v. State

• Decision Date: 08 December 1930
• Docket Number: 29092
• Citation: 131 So. 272,158 Miss. 808
• Court: Mississippi Supreme Court
• Parties: KELLY v. STATE

131 So. 272

158 Miss. 808

KELLY v. STATE

No. 29092

Supreme Court of Mississippi

December 8, 1930

Division A

1. CRIMINAL LAW.

Finding of guilty, based on conflicting evidence, will not be disturbed on appeal.

2. INTOXICATING LIQUORS. Words "affiant believes and does believe" are not necessary to validity of liquor search warrant, where affidavit and warrant charged absolute knowledge of facts, and were not based on belief.

Affidavit and search warrant did not contain words "affiant has good reason to believe and does believe," etc., but charged as absolute fact that, when search warrant was issued, affiant knew of his own knowledge that liquor was being kept for sale and sold.

HON. C P. LONG, Judge.

APPEAL from circuit court of Alcorn county, HON. C. P. LONG, Judge.

Mrs Josephine Kelly was convicted of the unlawful possession of intoxicating liquor, and she appeals. Affirmed.

G. C Moreland, of Corinth, for appellant.

The court below erred in overruling the objection to the introduction of the affidavit and search warrant for the reason neither the affidavit nor the search warrant stated that Mr. Young, the affiant, had reason to believe and did believe that intoxicating liquor was being kept, etc.

Turner v. State, 133 Miss. 738; State v. Watson, 133 Miss. 796; Porter v. State, 135 Miss. 789; Morrison v. State, 140 Miss. 221; Tucker v. State, 128 Miss. 211; Hem. Code 1927, sec. 2238.

Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.

The affidavit sets forth the facts tending to establish the grounds of the affiant's application for the search warrant and we submit that the search warrant, which was duly and properly issued by the United States Commissioner, was issued because the commissioner was satisfied of the existence of the grounds stated in the application.

The fact that the commissioner is satisfied of the existence of the grounds for issuing the search warrant may be presumed from the facts of the issuance of the warrant.

Tucker v. U.S. 299 F. 235; U. S. v. Caplan, 286 F. 963.

The question was one for the jury and as the evidence was conflicting, this court will not disturb the jury's finding.

City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; Borders v. State, 138 Miss. 788, 104 So. 145; Lofton v. State, 146 Miss. 237, 111 So. 303; Cox v. State, 146 Miss. 685, 112 So. 479.

OPINION

McGowen, J.

Appellant was convicted in the court below on an indictment charging her with the unlawful possession of intoxicating liquor, and sentenced to pay a fine of two hundred dollars and to confinement in jail for thirty days. From this conviction and sentence, she appeals here.

1. On the contention of appellant that she was entitled to a peremptory instruction on the question of her possession of whisky, found near the house she occupied, we think the evidence was conflicting as to whether she had possession of...