Lynchard v. State

• Decision Date: 05 December 1938
• Docket Number: 33480 1/2
• Citation: 183 Miss. 691,184 So. 805
• Court: Mississippi Supreme Court
• Parties: LYNCHARD v. STATE

184 So. 805

183 Miss. 691

LYNCHARD v. STATE

No. 33480 1/2

Supreme Court of Mississippi

December 5, 1938

Division B

1 ARREST.

Where some offense known to the law has been committed, or is said to have been committed, and affidavit based thereon is merely insufficient to charge such offense against the accused, an officer may lawfully execute a warrant for arrest of accused without being required to inquire into the sufficiency of such affidavit.

2 ARREST.

Where affidavit for arrest alleged that accused had disturbed the peace in named city, and sheriff was merely informed that accused had disturbed two persons not named in the affidavit without any information of how the alleged disturbance occurred, arrest of accused was unlawful.

3. CRIMINAL LAW.

On appeal from conviction based on allegedly unlawful arrest and search, reviewing court would assume that sheriff who effected the arrest knew that a general charge of having disturbed the peace in named city, as found in affidavit for arrest, was not punishable as a crime.

4. CRIMINAL LAW.

Where arrest of defendant for disturbing the peace was unlawful because of insufficiency of affidavit and of sheriff's knowledge concerning the offense, but after such arrest search of defendant's person revealed intoxicating liquors, and admission of such liquor in trial for unlawful possession of liquor was duly objected to and objection was renewed by motion for peremptory instruction, peremptory instruction should have been granted.

HON. S. F. DAVIS, Judge.

APPEAL from the circuit court of Humphreys county HON. S. F. DAVIS, Judge.

Frank Lynchard was convicted of possession of intoxicating liquor, and he appeals. Reversed and rendered.

Reversed and judgment here for appellant.

H. F. Jones, of Belzoni, for appellant.

The first step necessary in the prosecution of a person for a crime is the flung of an affidavit. 16 C. J. 290. An affidavit filed afterwards is too late. If an affidavit is insufficient it cannot confer jurisdiction to issue a warrant. 16 C. J. 291.

The affidavit and warrant for arrest are considered as together constituting the precept, and if the complaint shows on its face that the justice of the peace who signed the warrant of arrest had no jurisdiction or authority to issue it the warrant is defective and void.

2 R. C. L. 460.

The affidavit upon which a warrant is issued should present the facts with such clearness that they may be understood by the party who is to answer them, and by the court and jury.

2 R. C. L. 461.

An affidavit charging an offense for which defendant is put on trial before a justice of the peace is essential to his jurisdiction also circuit court on appeal.

Morris v. State, 118 Miss. 605, 79 So. 811; Section 26, Constitution of Mississippi; 16 C. J. 294; Thompson v. State, 51 Miss. 353; Riley v. State, 43 Miss. 397; Williams v. State, 42 Miss. 328; Newcomb v. State, 37 Miss. 383; State v. Rodgers, 29 So. 73; Walton v. State, 64 Miss. 207, 8 So. 171; Brown v. State, 103 Miss. 664, 60 So. 727.

The affidavit under Section 26 of the Constitution must state the facts which constitute the offense.

16 C. J. 295; Hartness v. State, 95 Miss. 506, 48 So. 294.

An affidavit in a justice of the peace court charging "disturbing peace" is wholly insufficient to make as a charge of the commission of a misdemeanor.

Walton v. State, 64 Miss. 207, 8 So. 171.

The disturbance of the peace of one person, or two persons for that matter, as individuals, is no offense against the law.

Brooks v. State, 67 Miss. 577, 7 So. 494.

The arrest of Frank Lynchard was either an entirely false arrest, or a pretext to search his person.

Every misdemeanor may, in a sense, be said to be a breach of the peace, and therefore for one to receive at the hands of the prosecution in such a case as the one here a proper accusation, it is necessary, to secure to the accused the benefit of his constitutional rights of a statement of the offense charged against him, that the facts constituting the offense be made in some detail. It is here submitted that charging that one has breached the peace generally is to charge no offense against him.

Harrington v. State, 54 Miss. 490; Jesse v. State, 28 Miss. 100; Sarah v. State, 28 Miss. 267; Finch v. State, 64 Miss. 461, 1 So. 630.

Evidence procured by an unlawful search is inadmissible.

Patterson v. State, 130 Miss. 680, 95 So. 96; Tucker v. State, 128 Miss. 211, 90 So. 845; Cofer v. State, 118 So. 613, 152 Miss. 761; Iupe v. State, 105 So. 520; Duckworth v. Taylorsville, 142 Miss. 440, 107 So. 666; Tolliver v. State, 98 So. 342; Cofer v. State, 152 Miss. 761, 118 So. 613.

It may be said that the appellant admitted the possession in the hearing of the motion to quash. This is true, but all of this was just after the officers had forced it from his person, in the manner set forth herein, after it was already in official hands.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

In the circuit court appellant moved to quash the affidavit charging him with the unlawful possession of liquor upon the ground, in substance, that he was not under a lawful arrest at the time the liquor was found and hence the evidence of his possession of liquor, under the circumstances, would be incompetent and inadmissible.

Stripping the argument of all the fanciful and highsounding verbiage, this motion was designed merely to test the competency of the evidence which the state expected to use against appellant in his trial. The court could have properly overruled this motion to begin with because it was not required to preliminarily inquire into the competency of the evidence until it was offered at the trial.

Holmes v. State, 146 Miss. 451, 111 So. 860; Owens v. State, 152 So. 651.

However, the court heard testimony in support of the motion. At this hearing the appellant himself testified with reference to the search that was made of his person and admitted that he had the liquor on his person just exactly as the officers said he did.

Had the trial on its merits been under way and a preliminary inquiry were had to determine the competency of this evidence, this testimony of the defendant in which he admitted the possession of the liquor would have brought the case within the well established rule that where the defendant testifies and admits facts revealed by an unlawful search, he cannot complain of evidence produced by the state which came as...