Owens v. State

• Decision Date: 17 December 1923
• Docket Number: 23717
• Citation: 98 So. 233,133 Miss. 753
• Court: Mississippi Supreme Court
• Parties: OWENS v. STATE

98 So. 233

133 Miss. 753

OWENS v. STATE

No. 23717

Supreme Court of Mississippi

December 17, 1923

(In Banc.) January 1, 1920

1. FORMER RULING REAFFIRMED.

Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377 holding that evidence secured against a defendant in violation of section 23 of the Constitution of 1890, prohibiting unreasonable searches and seizures, could not be used against him in a criminal prosecution, re-examined and reaffirmed.

2. CRIMINAL LAW. Evidence secured by unlawful search incompetent.

Evidence on behalf of the state against a defendant, convicted of having a still in his possession for the manufacture of intoxicating liquors, which evidence was secured as the result of the search of his dwelling without a search warrant in violation of section 23 of the Constitution of 1890, was incompetent.

SMITH C. J., dissenting.

HON. J Q. LANGSTON, Judge.

Appeal from circuit court of Lamar county, HON. J. Q. LANGSTON Judge.

Ned Owens was convicted of the unlawful possession of a still, and he appeals. Reversed and remanded.

Reversed and remanded.

Salter & Coleman, for appellant.

We think that the only questions involved in this appeal have to do, and deal with the validity of the affidavit and search warrant, and the court's action in permitting the state to introduce evidence, over defendant's objection and protest, obtained under the search warrant.

The court will note from the testimony of W. E. Miller, justice of the peace, and who issued the search warrant, that there was no description of the premises, whatever, in either the affidavit or the search warrant. There was nothing in either document to show where the premises of Lonny Williams, to be searched, were located, whether in Purvis, Lumberton, Hattiesburg, or Columbia, and that the search warrant specifically directed and attempted to authorize the search of the premises of Lonny Williams, and not of Ned Owens, the defendant (appellant).

We most respectfully submit that the state's evidence shows conclusively that both the affidavit and the search warrant, based thereupon, are null and void even as to Lonny Williams. We think that the rule is universal that the description in the affidavit and also in the search warrant must be as specific as required in a deed of conveyance of such property. It must be so specific that the officer into whose hands the writ is placed for execution, can locate the property without the aid of extrinsic evidence. We are unable to find where this precise question has ever been before our appellate court, but as stated above, we find that the rule stated, as to the requirement of specific description of the property to be searched, is universal. We do not feel that the citation of authorities is necessary to sustain this contention, and simply refer the court to the "notes" to Rose v. State, 17 Ann. Cases, pages 228 to 236. But we would further direct the attention of the court to the case of Larthet v. Forgay, 46 Am. Dec. 554, cited in the notes referred to. This case is particularly applicable to the case at bar in that under the search warrant in the instant case, the officers searched the premises of Lonny Williams near the G. and S. I. Depot, and also the home of the appellant, three-fourths of a mile away, and where Lonny Williams had never lived, but where she spent a week in April prior to the issuance of the search warrant against her.

We submit that under the well established, if not universal rule of law, referred to and sustained by the authorities cited, it is inconceivable how any court can sustain the validity of a search warrant which does not even attempt to specifically describe the premises to be searched, and which is so vague and indefinite as to leave the officer unable to determine therefrom, whether the premises to be searched are in Lamar, Forrest, or Marion counties. It is clear from the testimony of Mr. Cain, the deputy sheriff, who executed the writ, that he could not locate the premises from the writ itself, but was forced to, and did resort to extrinsic evidence to determine what property was intended to be searched. He says that he located the house to be searched from evidence given him by the negro man who had been accused of shooting Lonny Williams, and also from the information furnished him by S. E. Slade, marshal of Lumberton. Permit us to call the court's attention to the fact that the record discloses the fact that the officer holding the writ to search Lonny Williams' premises, knew at the time he invaded the home of the appellant, that Lonny Williams did not live there nor occupy said premises, but that the same was the home of Ned Owens, and that Lonny Williams' premises which the writ attempted to direct to be searched, was three-fourths of a mile distant, at the G. and S. I. Depot.

We most respectfully submit that taking into consideration section 23 of the state Constitution, the universal rule of law, construing the requirements of the provisions of the constitutions of other states, as to the specific description of property to be searched, required in the affidavit and search warrant, the same and all proceedings thereunder are null and void as against Ned Owens, appellant. Surely it cannot be seriously contended that appellant's constitutional rights under section 23, are not violated, by entering his home, and castle, known to be such by the officers, so intruding, under a writ directing them to search the premises of a third party. If the officers could enter Ned Owens' home under this writ and obtain evidence against him, under the circumstances disclosed by this record, then section 23 of the Constitution is a nullity.

We submit that as to this appellant, the search was made without a search warrant, and that the evidence obtained against him was illegally obtained, and should not have been admitted in evidence. This court has settled this proposition. Tucker v. State, 128 Miss. 211. And while this decision has been attacked, time after time, it is adhered to, and repeatedly affirmed as the law of the state. A citation of the later cases upholding this doctrine is unnecessary and will serve no purpose.

We most urgently insist that the court should not have permitted the state to introduce the evidence of its witnesses over defendant's (appellant's) objections; that it should have sustained the motion to exclude the state's evidence and that it should have sustained defendant's motion for a peremptory instruction to find him not guilty. There is no scintilla of evidence against him except that obtained under and as a result of a flagrant violation of his constitutional rights.

It is of far more importance and grave concern that the Constitutional rights of the masses be safeguarded and protected than that in a few isolated cases, the guilty go unpunished and unwhipped of justice. State v. Patterson, 95 So. 96. We submit that defendants charged and tried for violation of the prohibition laws, are entitled to the same fair and impartial trials and legal procedure as persons charged with other crimes, and that when circuit courts and prosecuting officers realize that our court of last resort stands immovable for safeguarding the Constitution, it will have much effect in "sobering" these officials from the effect of the mania which possesses the masses at the present time against persons charged with violations of the prohibition laws.

S. C. Broom, Special Assistant Attorney-General, for the state.

This is a case involving the law of search and seizure. The questions that will probably arise in a consideration of the case are as follows: 1. What constitutes a sufficient description of the property to be searched? 2. Is evidence unlawfully obtained admissible under any circumstances on the trial of the case?

Theory of the defense. Section 23 of the Constitution of the state of Mississippi is as follows: "The people shall be secure in their persons, houses and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized."

The defendant contends that the place to be searched was not specially designated within the meaning of this section, and that, therefore, it was an unreasonable search and seizure within the meaning of said section, hence an illegal search, and that evidence obtained by the illegal search is not admissible on the trial of this case.

Theory of the state. The theory of the state is that the property to be searched was sufficiently described within the meaning of section 23 of the Constitution of the state of Mississippi, but if the court should find upon an examination of this record that the description was insufficient, then we contend that the evidence obtained by means of the search was nevertheless admissible.

In the case of United States v. Bauer et al., the search warrant describing the place to be searched as a certain house, store, building or other place known as No. 630 Michigan Avenue, Buffalo, New York, being the premises of a person unknown, was held to be sufficiently specific. See Prohibition Enforcement Bulletin No. 13, June 21, 1923.

The case of State v. Brown, 114 S.E. 372, holds in substance that, "slight variance in description and date between an affidavit and warrant is immaterial. Failure to read warrant did not vitiate proceedings." This court has held in the case of Tucker v. State, 90 So. 845; Williams v. State, 92 So. 584; Miller v. State, 93 So. 2; Butler v. State, 93 So. 3; and Taylor v. State, 93 So. 355, that evidence unlawfully obtained was not admissible on the trial of the case and the same would be suppressed.

...