Morton v. State

• Decision Date: 06 October 1924
• Docket Number: 24354
• Citation: Morton v. State, 136 Miss. 284, 101 So. 379 (Miss. 1924)
• Court: Mississippi Supreme Court
• Parties: MORTON v. STATE. [*]

101 So. 379

136 Miss. 284

MORTON v. STATE. ^[*]

No. 24354

Supreme Court of Mississippi

October 6, 1924

Division A

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

Walter Morton was convicted of possession of more than one quart of liquor, and he appeals. Reversed and remanded.

Judgment reversed and cause remanded.

John R. Anderson, for appellant.

I. The affidavit states that "intoxicating liquors are kept in violation of law in a building occupied by Walter Morton on North Spring street," etc. The testimony shows that Walter Morton lived in a house on North Spring street and that there were two outhouses, viz., a coal house and another outhouse. Before a justice of the peace could issue a search warrant he must first get his information from the affidavit and issue a search warrant, on the information procured from the affidavit. Now how could a justice of the peace or anyone else ascertain from the affidavit whether the building described in the affidavit was the home occupied by the appellant, a store house, a coal house or what.

In other words it is our contention that the affidavit under section 23 of the Constitution must "specially designate the place to be searched," and in the event of the failure of that affidavit to designate the place to be searched with the particularity required of it by section 23 then such an affidavit is void and a search warrant issued as a result thereof is illegal and violates the due process clause, Section 14 of the Constitution of the state of Mississippi. And how could anyone have arrived at what was intended to be searched from the affidavit in this cause because it was not stated whether the building designated in the affidavit was the home of the appellant, his outhouse store house or what it was. Turner v. State, 98 So. 240; State v. Watson, 98 So. 241.

II. The search warrant commanded the officers to search the outhouse designated in the affidavit. There was no outhouse designated in the affidavit. Therefore the search warrant is void because it does not designate the premises to be searched with the particularity required of it by section 23 of the Constitution of the state of Mississippi. It is not even designated in the search warrant where the outhouse is located. That is, whether in the state of Mississippi, Lee county, or where, but simply states the outhouse designated in the affidavit and there was none designated in the affidavit. Therefore, we say that the search in this case was illegal.

III. The testimony shows that the consent of the appellant to search his place was not obtained until the officers told him that they had a search warrant and then he told the officers to go ahead and search. We say that this merely amounted to an agreement on the part of the appellant that the officers could search his house provided they had a search warrant. State v. Watson, 98 So. 241.

Harry M. Bryan, Assistant Attorney-General, for the state.

Appellant urges that the affidavit upon which the search warrant of the officers was issued, was invalid, principally because the place of the search was not fully described therein; that there was a serious variance between the warrant and the affidavit upon which it was predicated. He says that by virtue of such invalidity the testimony of the officers as to the finding of the whiskey was inadmissible under the holding of this court in the case of Turner v. State, 98 So. 240, and many other cases.

We do not deem it necessary to go into the question of the validity of the search warrant or affidavit at this time because we are convinced that not only did the defendant expressly agree and consent to the search of his premises, but that he made a confession in the record which is not negatived by any testimony whatsoever. We might add just here that at the conclusion of the state's cause the matter was submitted to the jury under proper instructions. There was no testimony introduced on behalf of the defendant.

Appellant relies upon State v. Watson, 98 So. 241, in support of his contention that he did not freely consent to the search of his premises and, therefore, if the affidavit for search warrant and the search warrant itself are invalid, evidence procured thereunder is rendered inadmissible. A careful examination of the original record in the Watson case, discloses facts therein wholly different from those revealed by the record in the case at bar. In the Watson case it was established that when the officers reached the house of appellant, they drove up to his door, got out, stepped up to the back door and told him that they had a search warrant, whereupon, the appellant wheeled around and said, "All right," and commenced breaking up some jugs which had whiskey in them. The appellant testified that he never consented to the search of his house without a lawful warrant, but that he told the officers that they might do so if they had one. In the case at bar, it was clearly established by the state's witnesses that the defendant offered his services to them in the search.

In the case at bar, there was no mere acquiescence or failure to protest or object to the search, but there was a positive waiver of rights and an affirmative stand taken by the appellant. But granting that the affidavit and search warrant were invalid and that the testimony secured thereunder would thereby become inadmissible, appellant freely and voluntarily made a confession to the officers as is shown in the testimony.

When the officers were turning over a pile of coal in the appellant's coal house they struck a jug and before anyone had said anything about what was in it, Mr. Carr said, "Well, here it is," and the appellant replied, "Mr. Elzie, you sho' got me, ain't you." The officer did not question him; he held out no promise or inducement to appellant, but said "I think I have." He then turned to the appellant and asked the question, "How much in the jug" (that was, as he says, before he had gotten it out of its hiding place). The appellant replied, "I bought a gallon and a half."

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