Northcutt v. State, 44535

• Decision Date: 30 October 1967
• Docket Number: No. 44535,44535
• Citation: 206 So.2d 824
• Parties: Robert Earl NORTHCUTT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 824

206 So.2d 824

Robert Earl NORTHCUTT v. STATE of Mississippi.

No. 44535.

Supreme Court of Mississippi.

Oct. 30, 1967.

Pigford & Hendricks, Meridian, for appellant.

Joe T. Patterson, Atty. Gen., By G. Garland Lyell, Jr., Asst. Atty. Gen., and J. Murray Akers, Sp. Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice:

The Appellant, Robert Earl Northcutt, was indicted, tried and convicted in the Circuit Court of Lauderdale County on a charge of violating House Bill No. 1212, section 3, paragraph (e) appearing as Miss. Laws 1966 ch. 649, section 3(e); Mississippi Code 1942 Annotated section 10265-103(e) (Supp.1966). He was sentenced to pay a fine of $700 and to serve a term of six months 'on the road.' In addition, the court entered judgment against him for $1,800, which was the sum of taxes due plus the penalty provided by the statute.

Several grounds are argued by appellant as requiring reversal.

House Bill No. 1212 provides as follows:

(e) If any person shall engage or continue in any business which is taxable hereunder without having paid said tax as provided herein, such person shall be liable for the full amount of such tax plus a penalty thereon equal to the amount thereof, and, in addition, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a term of not more than six (6) months, or by both such fine and imprisonment, in the discretion of the Court.

Omitting the formal parts, the indictment charges the offense against the appellant in this language:

That Robert Earl Northcutt in said County, on the 4th day of November, A.D., 1966 did wilfully and unlawfully violate House Bill No. 1212 of the laws of the State of Mississippi, Section 3, Paragraph E, to-wit: By unlawfully and wilfully selling to Sam M. Richardson, Jr., one 1/2 pint of alcoholic beverage, namely (Old Crow), for $2.50 in lawful money of the United States of America.

Appellant contends that the indictment is fatally defective in that it does not charge that appellant 'engaged or continued' in selling whiskey, a business taxable under the statute.

Mississippi Code 1942 Annotated section 2449 (1956), provides:

All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise * * * before the jury shall be impaneled * * * and not afterward * * *.

We consider this objection to the indictment to be for 'a defect appearing on the face.'

While inartificially drawn, the indictment charged appellant with acts alleged to be in violation of a certain subparagraph of a designated statute and rendered it amendable, if its sufficiency had been challenged by demurrer. However, no demurrer was interposed, the case was tried, and the objection cannot be raised for the first time on appeal. Clark v. State, 206 Miss. 701, 39 So.2d 783 (1949), Suggestion of Error Overruled, 206 Miss. 701, 40 So.2d 591 (1949).

The circumstances which gave rise to the prosecution may be summarized as follows. At about 11:15 on the night of Friday, November 4, 1966, two enforcement agents of the Alcohol Beverage Control Division of the Mississippi State Tax Commission went to the Sky View, a night club, operated by Appellant Northcutt near the City of Meridian. Their duties consisted in the checking out of complaints as to persons alleged to be selling or making whiskey without paying taxes or securing permits as required by the Laws of Mississippi. On the night in question, in the course of their duties, they went into the Sky View, which was open and doing business, and sat down on stools at the bar or counter. There was a band, dancing was going on, and outside there was a patio with tables and chairs. The agents had with them a Jim Beam whiskey bottle, with about two ounces of whiskey in it. They ordered and were served setups with which they prepared drinks at the bar, using the whiskey they had brought with them. Appellant was behind the bar, and when the drinks had been prepared and the bottle was empty, the agents slid it across the bar to appellant, who said to them: 'I don't have any Jim Beam, but I have some Old Crow, if you would like some more whiskey, I can sell you some Old Crow.' The agents finished their drinks and bought from appellant a half pint of Old Crow, for which they paid him $2.50.

It is conceded that appellant had not paid the tax required by the Laws of Mississippi to engage in the business of selling whiskey.

No arrest was made that night, the agents explaining that they wished to remain incognito for the time being, as they continued to check out other establishments in the neighborhood.

On Sunday afternoon, November 6, one of the agents when before a justice of the peace and obtained a search warrant for the Sky View. On a subsequent search made pursuant to the warrant, the agents found no whiskey on the premises. However, six empty whiskey cases or boxes were found, three from a local whiskey store, and three from 'out of State.' These boxes were found back of a small house in the rear of the club, piled either upon or near the garbage heap.

Timely objection was interposed to evidence as to the discovery of the empty cases or boxes. This objection was overruled. Of several grounds assigned it will be necessary to notice only one, that is, the affidavit did not contain a sufficient statement of the facts and circumstances which were relied upon to form the basis of a finding or adjudication by the issuing magistrate that probable cause existed for the issuance of the search warrant.

The affidavit had been prepared by the filling in of a printed form. The form used provided a space, in paragraph 5, for the insertion of a statement of the facts and circumstances relied upon by affiant as constituting probable cause for the issuance of the warrant. The printed portion of paragraph 5 was as follows:

5. The facts and circumstances upon which the court may fairly ascertain the persuasiveness of the facts relied on to show probable cause to establish the foregoing grounds for issuance of a Search Warrant are as follows, to-wit. * * *

This was followed by detailed instructions, stating that it was necessary to set out 'the underlying facts and circumstances to enable the issuing officer to fairly ascertain that probable cause exists for the issuance of the warrant.' The printed instructions concluded:

Use factual recitals showing names, places, times and dates, in common-sense non-technical language. Be specific and give the information in detail.

The space thus provided was not filled in, but was left wholly blank. The result was that there was no statement of any fact or circumstance capable of forming the basis of a finding by the magistrate that probable cause existed for the issuance of a warrant.

The issuance of a search warrant upon such an affidavit was condemned on O'Bean v. State, 184 So.2d 635 (Miss.1966). In O'Bean this Court quoted from Aguilar v. State of Texas, 378 U.S....