Lovern v. State

• Decision Date: 09 November 1925
• Docket Number: 24966
• Citation: 105 So. 759,140 Miss. 635
• Court: Mississippi Supreme Court
• Parties: LOVERN v. STATE. [*]

105 So. 759

140 Miss. 635

LOVERN v. STATE. ^[*]

No. 24966

Supreme Court of Mississippi

November 9, 1925

Division A

1. CRIMINAL LAW. For evidence obtained by search without warrant to be inadmissible it must appear that such property was owned or was in possession of accused.

In order for evidence obtained by means of a search without a warrant therefor to be inadmissible in a criminal prosecution, it must appear that the property searched was owned or was in the possession of the defendant.

2. CRIMINAL LAW. For plea of former jeopardy to avail, accused must have been acquitted or convicted in former trial on merits of crime for which he is again sought to be convicted.

In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial on the merits of the crime for which he is again sought to be convicted. Constitution 1890, section 22.

3. CRIMINAL LAW. Parol evidence held admissible to settle doubt as to whether accused had been in former jeopardy.

Where it is doubtful, from the recitals of a judgment dismissing a case and discharging the defendant therein pleaded in bar of a second prosecution for the same offense, whether the defendant was tried and convicted on the merits, such doubt may be removed by parol evidence.

HON. C P. LONG, Judge.

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

Homer Lovern was convicted of having possession of intoxicating liquors, and he appeals. Affirmed.

Affirmed.

Geo. H Hill, for appellant.

The officers who searched the premises of appellant did so without serving appellant with a copy of the search warrant, as provided by section 2088 of Hemingway's Code, and appellant objected to the introduction of the testimony with reference to this search until the search warrant and affidavit were produced, or their loss accounted for. The state did not produce the affidavit and search warrant, and did not account for their loss. Appellant was entitled to a peremptory instruction, and the motion to exclude the testimony and direct the jury to return a verdict of "not guilty" should have been sustained by the court.

This is a case where a justice of the peace and two other men, deputized by him, went to the premises of Boss Lovern and Homer Lovern and found what they claimed to be a keg of whiskey located in the woods near the side of a road some distance from the residence of the appellant and Boss Lovern, his brother. The officers testified that they had a search warrant, but that they did not serve a copy of the warrant on either of the defendants, in the lower court. It is true that the first witness, a Mr. Funderburk, testified that he thought Squire Phillips served them with a copy of the search warrant after they were arrested, but not before, but Squire Phillips testified that he did not have any recollection of serving them with a copy of it at any time. At any rate the search was made and the whiskey was found, and the possession traced to the appellant and the other defendants, without serving any copy of the warrant on either of them.

It was a fatal error for the court to permit the introduction of the testimony about the search of the premises and the location of the keg of whiskey and the possession of it by the appellant without requiring the state to produce the affidavit and warrant, or account for their loss. Cuevas v. City of Gulfport, 99 So. 503; Wells v. State, 135 Miss. 764, 100 So. 674.

II. The court erred in not sustaining the plea of former jeopardy filed in this cause. The judgment of the justice of the peace who tried appellants is in the record and clearly shows that "said case was called and appearing that there was insufficient evidence to convict the defendant the case was dismissed, and the defendants discharged."

F. S. Harmon, assistant attorney-general, for the state.

I. No question of unlawful search and seizure is here involved. Counsel for Homer Lovern vigorously insist that since the officers who searched these premises did not serve a copy of the warrant on this appellant, and did not introduce the affidavit or search warrant in evidence, the trial court erred in permitting them to testify. This question, however, is not before the court in this case. We have carefully examined the record and there is nothing therein to show that this appellant, Homer Lovern, can complain because of a search of these premises. In other words, there is nothing in this record to show that it was his land.

Boss Lovern admitted under oath that this was his home, and while it appears that Homer was living with him, there is nothing whatever to indicate that Homer was renting any of this land from Mr. Fears, or that Homer can complain, and since Boss Lovern was acquitted he is not here complaining before this court.

'This matter is governed by Falkner v. State, 98 So. 691, where this court reversed a case as to the brother who owned the land and affirmed it as to the brother who lived with him but who failed to show that he had any rights therein. See also Nelson Harris v. State, 98 So. 349.

II. The plea of former...