Outlaw v. State
| Decision Date | 31 January 1949 |
| Docket Number | No. 37346,37346 |
| Citation | 208 Miss. 13,43 So.2d 661 |
| Parties | OUTLAW v. STATE. |
| Court | Mississippi Supreme Court |
G. M. Holmes, Aberdeen, for appellant.
Greek L. Rice, Attorney General by Geo. H. Ethridge, Jackson, for appellee.
Appellant was convicted of the unlawful possession of intoxicating liquor, second offense.
He contends that the trial court erred in admitting in evidence the judgment of his conviction of the first offense. In this connection he first says that error was committed in permitting the record of his first conviction to be identified by a justice of the peace who succeeded the one who tried him, the trial justice having died in the meantime and his term of office having thereby necessarily expired. The succeeding justice of the peace was the custodian of the record and was the proper witness to identify it as well as to identify all docket entries made by his predecessor, and we find no merit in this contention. It is next contended that the judgment which was introduced, while showing a plea of guilty, contains in addition thereto certain recitals which were prejudicial to appellant in that the judgment shows that on the occasion of the rendition thereof the appellant was also charged with selling liquor and with unlawfully carrying concealed a deadly weapon which charges were 'dismissed and settled finally' upon the plea of guilty to the charge of possessing liquor. Before appellant could be convicted in the present case as a second offender it was absolutely necessary that the former conviction or plea of guilty be proven by the state, and we know of no better way to make that proof than by introduction of the judgment of conviction. The fact that said judgment showed dismissal of the other charges did not, in our opinion, operate unduly to the prejudice of appellant. By this judgment he was cleared of the other charges.
Appellant next contends that the search warrant was void and the search unlawful for two reasons. The liquor in this case was found locked in a metal box or locker in an outhouse in the back yard of the lot on which appellant's residence was situated. Appellant contends that no search of this outhouse was authorized. The property to be searched, as described in both the affidavit and warrant, included not only the residence but also the outhouses on the premises, and in our opinion the description was sufficient to authorize a search of the house where the liquor was found. It is next contended that service of the warrant was void because on the occasion of this search the appellant was not at home, and the officers left a copy of the search warrant on his bed, and that under Section 1859 of the Mississippi Code of 1942 a copy of the search warrant should have been posted on appellant's door. Said section applies only to the service of summons in civil actions and has no application here. The applicable statute is the concluding paragraph of Section 2614 of the 1942 Code which provides that a copy of the search warrant shall be served on the owner or person in possession of the premises if such person he present or readily found. Appellant was not present at the time of the search and it was therefore not necessary to serve a copy of the writ on anyone or to post a copy on his door. The act of the officers in leaving a copy on his bed did not render the search void.
Appellant contends also that error was committed by the district attorney in accusing him of perjury during the course of the argument of the case, but the record shows that no objection was made at the time of the argument and the question was not raised until after the argument was concluded and the jury retired. In this state of the record the point is not properly preserved for review.
Appellant further contends that error was committed by the prosecuting attorney in asking appellant while on cross-examination after testifying in his own behalf whether he would object to his wife being brought in to testify in the case, and by the court in compelling him to answer the question over objection of his counsel, and by the prosecuting attorney in subsequently offering the wife as a witness. After being compelled to answer, his reply was, 'I leave that up to my lawyer'. Appellant's wife was brought to the witness stand to testify against him in rebuttal, objection was made by appellant's counsel and sustained by the court, and counsel then requested the court to instruct the jury that the wife is not a competent witness against her husband, and the court replied 'That's right, unless it is agreeable by the husband.' To emphasize the full import of the situation we call attention to the fact that it had already been shown by the evidence that appellant and his wife were separated and a divorce suit was then pending between them. Under a preliminary order of the chancery court both the husband and the wife were permitted to occupy the residence during the pendency of this divorce suit. He occupied one bedroom in the main residence and she and two unmarried sons occupied the remainder of the house. All of them had access to the outhouse...
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