McBride v. State, 39202
| Decision Date | 14 June 1954 |
| Docket Number | No. 39202,39202 |
| Citation | 73 So.2d 154,221 Miss. 508 |
| Parties | McBRIDE v. STATE. |
| Court | Mississippi Supreme Court |
W. Arlington Jones, Hattiesburg, for appellant.
J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen., for appellee.
This is an appeal by Homer McBride from a decree of the Chancery Court of the First Judicial District of Jones County, which adjudged him guilty of contempt of court, sentenced him to pay a fine of $2,000 and serve 6 months in jail, with 4 months suspended, and which required him to execute a peace bond in the sum of $7,500, conditioned that he will not violate the liquor laws of the State for a period of two years.
On October 28, 1952, the Attorney General filed a bill in the Chancery Court of the First Judicial District of Jones County to have declared as a common nuisance the property described as: 'The Ritz Motor Court and Cafe is located 1.4 miles north of the Forrest-Jones County line in the First Judicial District of Jones County, Mississippi, on the West side of U. S. Highway No. 11 and in the northeast quarter of the southeast quarter of Section 27, Township 6, Range 13.' It was charged that liquor and slot machines were, respectively, possessed and exhibited in the buildings on said property, in violation of Sections 2646 and 1073, Code 1942. On the same day, the chancellor, by his fiat, ordered the issuance of the injunction; and the same was forthwith issued and served on the defendant.
On March 14, 1953, the Attorney General, together with both the District and County Attorneys, filed a petition, in which they alleged that McBride possessed liquor on the aforesaid premises on December 19, 1952, and prayed for his citation for contempt of court for violating the previously issued temporary injunction.
The answer of the defendant admitted the location of the property, as described in the bill of complaint, and that it was owned by him. However, he denied that he operated the place. On the contrary, he averred that he leased it to one Hubert Russell on September 30, 1952. He denied that liquor and slot machines were kept and exhibited at the place and that it constituted a nuisance. He admitted the issuance of the temporary injunction and his knowledge thereof; but he denied that he was in possession of the liquor on December 19, 1952, and that he was in contempt of the decree of the court.
Ed L. Blue, in the employ of the Attorney General, testified that about 2 o'clock p. m. on September 8, 1952, he purchased one-half pint of 'Early Times' liquor from a waitress in the Cafe; that a man, about 50 years of age, with light brown hair and weighing over 200 pounds, reached under the counter, got the liquor, gave it to the waitress, and that she delivered it to him. He also played a slot machine for both nickles and quarters, and testified that it paid off from the nickle slot.
J. M. Bates corroborated Blue. He paid $2.25 for the liquor, saw Blue playing the slot machine, and saw others drinking in the Cafe. He swore positively that McBride was the man. He then equivocated as to his identity, but finally said that his only reason for not swearing definitely that McBride was the man was that he might have an identical twin.
There was introduced in evidence an authenticated copy of an executive order of the Governor, dated December 18, 1952, which recited that there was resistence to the execution of the laws in Jones and other counties, and that local officers were in need of aid; and, under Sections 119 and 217, Constitution of 1890, the Adjutant General was ordered to call out the National Guard to enforce the laws in those counties.
On December 18, 1952, Ed L. Blue made affidavit before the County Judge of Jones County to obtain a search warrant to search for intoxicating liquors on the premises, as described in the original bill of complaint; and on the same date, the County Judge issued a search warrant for that purpose. On the following day, December 19, 1952, Maj. Fielding H. Staley, with four other national guardsmen, in obedience to the command of the warrant, made a search of the premises. McBride was in one of the buildings at the time. The Major gave him a copy of the search warrant. As a result of the search, a substantial quantity of intoxicating liquor was found on the premises. At the time, McBride said: He further said that he was through with the liquor business; that he had to pay for a tip-off in Jackson and had lost his liquor too. Henry J. Randazzo gave corroboration to the manner of the search and its results. Defense counsel admitted that the other three guardsmen would testify just as Maj. Staley and Randazzo had done.
McBride testified, in accordance with his answer, that he delivered possession of the place to Blackledge about September 1, though the lease itself was dated September 30, 1952; that he was not present when Blue and Bates purchased the liquor on September 8; and that he was not in possession when the search was made on December 19. However, he did not deny that he admitted to Maj. Staley the possession of the liquor which was obtained by the search.
The appellant contends that venue was not proved and that the court was without jurisdiction.
The bill charged that the property in question was in the First Judicial District of Jones County, Mississippi. The answer admitted the location of this property, as described in the bill. The proof showed that the sale of liquor on September 8, and the possession of liquor on December 19, occurred at that place. While the description in the writ of injunction was not as full and complete as in the bill of complaint, the defendant had adequate notice by reference to the description in the bill of complaint. Alexander v. State, 210 Miss. 517, 49 So.2d 387, 890.
Neither was there error in the admission of the evidence which was obtained as a result of the search by the National Guard. Widespread violations justified the Governor's action. Hence the evidence was properly admitted under the authority of State v. McPhail, 182 Miss. 360, 180 So. 387, and Seaney v. State, 188 Miss. 367, 194 So. 913.
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