Miller v. State

• Decision Date: 18 September 1922
• Docket Number: 22435
• Citation: 93 So. 2,129 Miss. 774
• Court: Mississippi Supreme Court
• Parties: MILLER ET AL. v. STATE

93 So. 2

129 Miss. 774

MILLER ET AL. v. STATE

No. 22435

Supreme Court of Mississippi

September 18, 1922

1. SEARCHES AND SEIZURES.

Search warrant, not specially designating place to be searched and thing to be seized, when issued, void.

A search warrant is void, which does not specially designate the place to be searched and the person or thing to be seized, when issued.

2. CRIMINAL LAW.

Corpus delicti cannot be proven by confession of accused alone.

The corpus delicti must be proven aliunde a confession.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of De Soto county, HON. GREEK L. RICE Judge.

Will Miller and another were convicted of unlawfully manufacturing intoxicating liquor, and they appeal. Reversed, and appellants discharged.

Judgment reversed.

R. E L. Morgan, for appellant.

The court should have sustained motion for appellant to exclude the testimony of state and discharge defendants. All the testimony was based on knowledge acquired in searching the premises without a search warrant and such evidence is not admissible. See Tucker v. State, 90 So. 845, et seq.

The alleged search warrant was merely an attempt on the part of the officers to evade the law in reference to obtaining a writ of search and seizure and by this method was conferring a power upon themselves that section 23 of our state constitution prohibits. They supplied themselves with an alleged warrant for search and seizure and had the justice of the peace to sign same, leaving out the name of the person to be seized and whose premises were to be searched. Armed with this blank paper they would go forth and search and seize at their will and thus assume a power denied by the constitution. This was not a warrant for search and seizure. At the time it was issued an "oath or affirmation had not been made specially designating the place to be searched and the person or thing to be seized." The place for the names were left blank and were written in afterwards by some one. See testimony of J. M. Weissinger, J. P., p. 17, cross-examination.

The alleged confessions if made at all were made under duress and all the evidence offered by the State was obtained in an unlawful manner, and all should have been excluded from the jury.

Wm. Hemingway, assistant attorney-general, for the state.

The statement of the case as given in the brief of the appellant is accepted as being correct. There was no evidence introduced by the defendants. But they rely entirely upon the fact that the justice of the peace, before whom the search warrant was obtained and the affidavit made, did not write the names of the parties whose premises were to be searched in the search warrant, but gave the search warrant in blank with authority to fill in the blank with any names which the officers might see fit. It was given to the deputy sheriff and constable to fill in the names of the defendant in order to proceed to make a search.

The court is familiar with the definitions of a search warrant and how it should be obtained. It has not been possible to find any authority which gives anyone a right to put the names of anyone in the search warrant. A warrant could only be obtained by affidavit designating the place to be searched and the parties. The court has just recently passed upon the legality of seizures without a search warrant, which cases would apply to an illegal search warrant.

After discovering the still in operation, the officers sent for Will Miller, who admitted that he was the guilty party. This was not under duress. He did not have to make the admission. He never objected to the search, made no protest of any kind whatever, acquiesced in all the acts of the officers and agreed to appear in court.

The boy, Robert Miller, made a confession which was not under duress. He was not held in connection with the still or the manufacture of the liquor, but made the acknowledgment to protect the woman. It is respectfully submitted that this does not constitute duress.

The search warrant was not read to anyone, no demand was made for it, but the deputy sheriff admits that he wrote the names of the defendants in the search warrant. The state will have to rest its case upon the admission of the defendant, aside from the search warrant, the admission of Robert which seems to have been secured absolutely free of...