Nash v. State

• Decision Date: 05 November 1934
• Docket Number: 31308
• Citation: Nash v. State, 171 Miss. 279, 157 So. 365 (Miss. 1934)
• Court: Mississippi Supreme Court
• Parties: NASH v. STATE

157 So. 365

171 Miss. 279

NASH v. STATE

No. 31308

Supreme Court of Mississippi

November 5, 1934

Division B

1. INTOXICATING LIQUORS.

In prosecution for possession of malt liquor, failure to show that liquor was intoxicating held immaterial where it was shown to have been made from malt, in view of prohibition of possession of malt liquor.

2. INTOXICATING LIQUORS.

Affidavit reciting that affiant had reason to believe and did believe that intoxicating liquors were being manufactured or possessed on accused's premises, and that he was informed by credible person that such was the case and that probable cause for issuance of search warrant did exist, held to authorize search, though no facts were presented to show probable cause.

3. SEARCHES AND SEIZURES.

Fourth Amendment to federal constitution prohibiting unreasonable searches and seizures have no application to state proceedings (Const. U.S. Amend. 4).

HON. W J. PACK, Judge.

APPEAL from the circuit court of Jones county HON. W. J. PACK Judge.

J. L Nash was convicted of unlawfully having in his possession malt liquor, and he appeals. Affirmed.

Affirmed.

Jeff Collins, of Laurel, for appellant.

Wm. H. Maynard, Assistant Attorney-General, for the state.

OPINION

Ethridge, P. J.

J. L. Nash, appellant, was tried in a justice of the peace court on an affidavit charging appellant with unlawfully having in his possession malt liquor, to-wit, beer, was convicted in said court, fined two hundred fifty dollars and sentenced to serve thirty days in jail. The case was appealed to the county court of Jones county, tried de novo, and appellant was again convicted, fined two hundred dollars, and sentenced to serve thirty days in jail, from which an appeal was taken to the circuit court where the judgment was affirmed. The case is prosecuted here upon the ground that a constitutional question is involved.

The first contention to be noticed in this opinion is that it is alleged that the affidavit does not charge an offense, in that it was not averred therein that the liquor, if drunk to an excess, would intoxicate, and that the liquors seized were not within the purview of the statute, because the proof showed that the liquor seized under the search was what is known as "home-brew," and there was no proof that it contained alcohol or was intoxicating if drunk to excess. The proof failed to show that the liquor was intoxicating; that it contained alcohol, or whether it had reached that stage that would produce intoxication, but, in our view this is wholly immaterial as the proof showed that the liquor was made from malt, and malt liquors are denounced by the statute as being unlawful to possess. This has been held by this court in a number of cases, viz.: Jones v. State, 152 Miss. 372, 118 So. 715; Reyfelt v. State, 73 Miss. 415, 18 So. 925; Purity Extract & Tonic Co. v. Lynch, 100 Miss. 650, 56 So. 316; Fuller v. City of Jackson, 97 Miss. 237, 52 So. 873, 30 L. R. A. (N. S.) 1078; Anderson v. State, 131 Miss. 584, 95 So. 637.

It is urged that the affidavit upon which the writ of search and seizure was issued was insufficient to authorize a search and that the evidence obtained thereby was unlawfully admitted. The affidavit recited that J. C. Hamilton made complaint, saying he had reason to believe and did believe that intoxicating liquors were being manufactured or possessed, sold or offered for sale, or given away in violation of law, in the dwelling house, outhouses, on the premises, at the place of business, in the automobiles or other vehicles occupied by John L. Nash, in said county and state, and that affiant was informed by a credible person that such was the case, and that probable cause for the issuance of a search warrant did exist. It is urged...