Keys v. State
| Decision Date | 02 December 1929 |
| Docket Number | 28113 |
| Citation | 124 So. 789,155 Miss. 574 |
| Court | Mississippi Supreme Court |
| Parties | KEYS v. STATE |
1. CRIMINAL LAW. Instruction excluding idea that jury must believe beyond reasonable doubt that defendant was guilty held erroneous.
In liquor prosecution, instruction stating in effect that it was unnecessary that jury know defendant was guilty, but it was sufficient for conviction if they believed from all evidence in case that defendant was guilty, and thus excluding idea that jury must believe beyond reasonable doubt that defendant was guilty, held erroneous, since it put conviction too much upon mere belief in defendant's guilt.
2. INTOXICATING LIQUORS. City policemen could serve within city warrant issued by justice of peace directed to any lawful officer of county (Hemingway's Code 1927, sections 2238, 2241).
Under Hemingway's Code 1927, sections 2238, 2241 (Laws 1924 chapter 244, sections 1, 5), city policemen were authorized to serve within city search warrant issued by justice of the peace directed "to any lawful officer of F County."
3. CRIMINAL LAW. Evidence secured by policemen under search warrant issued by justice directed to any lawful officer of county held competent (Hemingway's Code 1927, sections 2238, 2241, 3148).
In liquor prosecution, evidence secured by policemen under search warrant issued by justice of peace, directed "to any lawful officer of F. county" and served within city held admissible under Hemingway's Code 1927, sections 2238, 2241 (Laws 1924, chapter 244, sections 1, 5), relating to search warrants, and Hemingway's Code 1927, section 3148 (Code 1906, section 3937), providing that any process appearing to be in other respects duly served shall be good, though not directed to any officer.
4. CRIMINAL LAW. Where affidavit for search warrant was filed with justice of peace but affidavit charging crime was filed before clerk of county court, county court had jurisdiction to try defendant for possessing liquor.
Where affidavit for search warrant was filed with justice of peace of beat 1 of county, but affidavit charging crime of unlawful possession of intoxicating liquor and charging sale thereof was filed with clerk of county court, county court had jurisdiction to try defendant, since no affidavit charging crime was filed with justice of the peace.
APPEAL from circuit court of Forrest county, HON. TOM TAYLOR, Judge.
Joe Keys was convicted of possessing intoxicating liquor, and he appeals. Reversed and remanded.
Reversed and remanded.
Morris & Wingo, of Hattiesburg, for appellant.
The state is required to prove the defendant guilty "beyond every reasonable doubt;" and the jury should have been required by the instructions of the state to so believe from the testimony.
McGuire v. State, 37 Miss. 369; Goodwin v. State, 73 Miss. 873, 19 So. 712; Gordon v. State, 95 Miss. 543, 49 So. 609; Nelson v. State, 129 Miss. 288, 92 So. 66.
The making of an affidavit charging the possession of liquors for sale and the issuance of a search warrant commanding the search of the defendant's premises located in the territorial jurisdiction of the issuing justice of the peace and further commanding the arrest of the defendant and the production of the liquors found and the body of the defendant for trial on a date definite and fixed is in fact and in law the beginning of a prosecution by the state against the defendant and that thereupon the justice of the peace acquired full and complete jurisdiction of said cause and exclusively empowered to deal therewith.
Smithey v. State, 93 Miss. 257, 46 So. 410; Neely v. State, 100 Miss. 211, 56 So. 377; Hampton v. State, 138 Miss. 196, 103 So. 10.
Where affidavit for search warrant was filed with a county court, the county court had no jurisdiction to try defendant for possession of liquor.
Sec. 1, Chapter 244, Laws of 1924; Sec. 2238, Hemingway's Code of 1927.
Forrest B. Jackson, Assistant Attorney-General, for the state.
It is not always necessary in every case that the jury should be instructed that before they can convict they must believe the evidence beyond a reasonable doubt.
McGuire v. State, 37 Miss. 369; Haynie v. State, 32 Miss. 400; Singleton v. State, 71 Miss. 789, 16 So. 295.
The filing of an affidavit for a search warrant with the justice of peace is not the beginning of the action against appellant.
Smithey v. State, 93 Miss. 257, 40 So. 410.
All affidavits charging one with crime must conclude with the phrase "against the peace and dignity of the state." The affidavit for the search warrant in the instant case not concluding in such manner, the filing of the same was not the beginning of the prosecution.
State v. Morgan, 79 Miss. 659, 31 So. 338; Bufkin v. State, 134 Miss. 1, 98 So. 452; Kennedy v. State, 139 Miss. 579, 104 So. 449.
A policeman in the city of Hattiesburg is a public officer in Forrest county, Mississippi, and authorized to serve a search warrant directed to any officer of the county.
Shelby v. Alcorn, 36 Miss. 273; Monette v. State, 91 Miss. 662, 44 So. 989, 124 A. S. R. 715.
On an affidavit charging appellant with unlawful possession of intoxicating liquor, filed in the county court of Forrest county, Joe Keys was tried, convicted, and sentenced in said court. He appealed to the circuit court, where the case was affirmed, and he prosecutes an appeal here.
We are of opinion that the evidence offered by the state was ample to sustain the conviction.
The instructions given for the state are as follows:
1. "The court instructs the jury for the state that if you believe from all the evidence in this case that the defendant unlawfully had intoxicating liquor in his possession, or under his control as charged in the affidavit, then it is your sworn duty to find the defendant guilty as charged in the affidavit."
2. "The court instructs the jury for the state that you do not have to know the defendant is guilty as charged before you are warranted in returning a verdict of guilty; all that is required is that if you believe from all the evidence in the case that the defendant is guilty as charged, then it is your sworn duty to find defendant guilty as charged."
These were the only instructions submitted to the jury for the state.
On behalf of defendant the following instruction is the only one given:
"The court instructs the jury for the defendant that the testimony in this case is circumstantial and that any and all such evidence should be weighed and considered by the jury carefully and cautiously."
First, it is assigned here that both instructions for the state are erroneous, for the reason that the jury are not fold that they must believe that the defendant is guilty beyond a reasonable doubt. It will be observed that the case went to the jury without any instruction upon the theory of reasonable doubt, and that the defendant did not ask any instruction on that theory; and therefore, taking all the instructions together, this essential element is omitted from all the instructions.
The instructions, taken as a whole, are fatal to the conviction in this case,...
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...that the jury must believe fom the evidence beyond a reasonable doubt that the defendant is guilty in order to convict. Keys v. State, 155 Miss. 574, 124 So. 789 (1929); Jones v. State, 84 Miss. 194, 36 So. 243 (1904) and Godwin v. State, 73 Miss. 873, 19 So. 712 In Hall v. State, 128 Miss.......