Matthews v. State
| Decision Date | 31 March 1924 |
| Docket Number | 23320 |
| Citation | 134 Miss. 807,100 So. 18 |
| Court | Mississippi Supreme Court |
| Parties | MATTHEWS v. STATE. [*] |
Suggestion of Error Overruled May 26, 1924.
APPEAL from circuit court of Copiah county, HON. D. M. MILLER Judge.
L. A Matthews was convicted of the unlawful manufacture of intoxicating liquors, and he appeals. Affirmed.
Judgment affirmed.
J. F. Guynes, for appellant.
All evidence obtained by virtue of search unwarranted because of not following section 2088, Hemingway's Code, is inadmissible and incompetent. See sections 23 & 26, Mississippi Constitution, supra; Hemingway's Code, sec. 2088, supra; Miller v. State, 93 So. 2; Tucker v. State, 128 Miss. 211; State v. Patterson (Miss.), 95 So. 96. The said affidavit designates the place where liquors are manufactured, etc., as "premises" of said Matthews, whereas the search warrant directs the search of "the residence, premises, automobile and all outhouses for said liquors, etc." Under a proper construction, the warrant which undertakes to enlarge the scope of search is rendered void thereby. If not wholly vitiated, then all places not designated in the affidavit are improperly inserted and give no authority to the officers for search of those places. "Premises" alone remain as the place to be searched. We submit this term is too general and indefinite to meet the requirements of the statute under consideration. The constitution requires the affidavit shall "specially designate the place to be searched." The statute requires that the "room or building designated in the affidavit." The warrant shall command the officer "to enter the room or building designated."
No general and indefinite description such as "premises" approaches the requirements of the statutory or constitutional requirements. This court in State v. Moore, in construing this "term" says: "The word 'premises' in the indictment does not necessarily or even ordinarily mean a dwelling house or the yard or curtilage thereof." State v. Moore 24 So. 308.
S. C. Broom, Assistant Attorney-General, for the state.
We are familiar with section 2088 of Hemingway's Code, which is a statute authorizing the issuance of a search warrant for intoxicating liquors, etc., but in the present case there was an affidavit for a search warrant and a search warrant. The affidavit charges that the affiant has reason to believe and does believe that intoxicating liquors are manufactured, given away, and sold in violation of law on the premises occupied by L. A. Matthews in District No. 5, about fourteen miles Northeast of Hazlehurst, etc., and further recites that the suspicion is not feigned of malice but is founded on creditable information.
The search warrant recites the substance of the affidavit and commands the officer to proceed and search the residence, premises, automobiles, and all outhouses, for said liquors and any such vessels and appliances, etc., and this was returnable instanter.
Having in mind the constitutional provision with reference to search warrants and the statutory requirements with reference to search warrants, we are of the opinion that the affidavit and search warrant in this particular are very full and complete. We concede the law to be that if there had been no search warrant in this case, then any evidence obtained by means of an unlawful search could not have been introduced on the trial of this case. But the authorities relied upon by counsel in this case as we understand it do not pretend to hold that in a case of this kind where there was a valid search warrant issued in compliance with the terms of the statute that evidence thus obtained would not be admissible.
J. F. Guynes, for appellant in reply.
The state in its brief in this cause, in our opinion, discounts the force of both the Constitution and statutory requirements as to description of place to be searched and the property to be seized. The word "premises" and the words said "liquors, vessels and appliances" as used in the affidavit, with no other words more particularly describing the place to be searched and the property to be seized, is too vague and indefinite to meet the requirements of the Constitution or the statute of Mississippi. The search warrant must be no broader in its terms designating the place to be searched and the thing to be seized than is the affidavit. We are, therefore, confined, in considering this case, to the words "premises" for description of the place and to said "liquors" and to "vessels and appliances" for the description of the thing to be seized.
The word "premises" has been construed by our own court in Rignall v. The State, 98 So. 444.
The search warrant is directed to "any lawful officer of Copiah county." Section 2088, Hemingway's Code, requires the search warrant shall be directed to the sheriff or any constable of the county. It was never the intention of the law that a warrant to search for intoxicating liquors should be issued promiscuously or to an unnamed official but it is the duty of the justice of the peace when issuing a search warrant to select and name the officer to be intrusted with the execution of such an important writ. The mere fact that the writ might have been afterwards executed by the sheriff, can add nothing to the validity for the writ must stand or fall by its own merits.
Argued orally by J. F. Guynes, for appellant and Harry M. Bryan, Assistant Attorney-General, for the state.
The appellant was indicted, tried, and convicted of manufacturing intoxicating liquors, and sentenced to the penitentiary for three years; from which judgment he appeals.
The evidence introduced against the appellant was procured by a search of the premises of the appellant under an affidavit and search warrant alleged to be faulty by the defendant. The affidavit for the search warrant reads as follows:
"State of Mississippi, County of Copiah.
"This day D. T. Lowe came and personally appeared before the undersigned, a justice of the peace of the first supervisor's district of said county, and makes oath that he has reasons to believe and does believe that intoxicating liquors are manufactured, given away, and sold in violation of law on the premises occupied by L. A. Matthews, in district No. 5, about fourteen miles northeast of Hazlehurst, in said county and state," etc.
The search warrant was addressed "To Any Lawful Officer of Copiah County," and recites the making of the affidavit, and commands the officer--"with such aid as shall be needful you do proceed in day or night to enter by breaking, if necessary, and diligently search the residence, premises, automobiles, and all outhouses for said liquors, and any such vessels and appliances, making known to the occupant thereof, if any, your authority for so doing," etc.
The evidence was objected to on the trial and exceptions taken to its admission, and the only evidence was the evidence of the officers obtained by means of search made under the search and affidavit; and the evidence was found, part in an outhouse near the residence, and part in the different rooms in the dwelling, and part in the possession of the defendant.
It is contended that the search warrant is void because it is not addressed to the sheriff or constable as required by section 2088, Hemingway's Code (chapter 115, Laws of 1908). This section, after providing for the affidavit, provides: "It shall be the duty of any justice of the peace . . . to issue a search warrant, directed to the sheriff or any constable of the county, or if in a municipality, to the sheriff, or any constable or marshal, or policeman therein," etc.
The warrant here is addressed "To Any Lawful Officer," but was delivered to the sheriff for execution. We do not think that addressing the warrant "To Any Lawful Officer" vitiates it. It was delivered to and executed by...
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