Parkinson v. State

Decision Date06 December 1926
Docket Number26062
CourtMississippi Supreme Court
PartiesPARKINSON v. STATE. [*]

Division B

. {Division B.)

1. CRIMINAL LAW. Searches and seizures. Affidavit for search warrant, describing place as occupied by estate of deceased person, is not sufficient; evidence obtained by search, where affidavit for warrant described place as estate of deceased person, was inadmimissible (Constitution 1890, section 23).

An affidavit for a search warrant, under section 23 of the state Constitution of 1890 is not sufficient where it only describes the place to be searched as being occupied by the estate of a named person who is then dead, and the evidence obtained by means of such affidavit and the warrant issued therein is inadmissible in evidence.

2. CRIMINAL LAW. Intoxicating liquors. Conviction will not be reversed because of testimony obtained by illegal search where defendant admits all facts derived therefrom; where defendant denied connection with liquor manufactured, rule that conviction will not be reversed for admitting testimony obtained by illegal search where defendant admits facts obtained therefrom is inapplicable; mere knowledge of manufacture of intoxicating liquor is not sufficient to sustain conviction as participant therein.

Where the state has introduced testimony obtained by an illegal search warrant, and the defendant takes the stand and admits all of the facts derived from such search, the case will not be reversed, but this rule does not apply where the defendant denied having any connection with the manufacture of liquor being manufactured, at the time the search warrant was served, by other persons. Mere knowledge of the fact of the manufacture of intoxicating liquor is not sufficient to sustain a conviction as a participant therein.

3. CRIMINAL LAW. After state introduces evidence of one offense of manufacturing liquor, introducing evidence of other offenses is error, notwithstanding statute; Hemingway's Code, section 2098, does not apply to prosecution for manufacturing intoxicating liquors.

In a prosecution for the manufacture of intoxicating liquors, the state is limited to proving one offense, and it is error to introduce other offenses after the state has introduced evidence as to one offense. Section 1762 of the Code of 1906 (section 2098, Hemingway's Code), has no application to the prosecution for the manufacture of intoxicating liquors.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Holmes county, HON. S. F. DAVIS, Judge.

George Parkinson was convicted of manufacturing intoxicating liquor and he appeals. Reversed and remanded.

Judgment reversed and case remanded.

Boothe & Pepper, and J. A. Teat, for appellant.

The affidavit authorizes only the issuance of a search warrant covering "the premises occupied by W. M. Parkinson, estate." The search warrant copying the description of the place to be searched, states "the residence, premises, automobile and all outhouses," no location given nor person in possession named in the command of the warrant.

In law and fact there is and was not at that time any such place as W. M. Parkinson estate or any such person as W. M. Parkinson, for evidence shows he had been dead for some years. Neither the affidavit nor the search warrant direct and authorize the officers to go upon the place formerly owned by W. M. Parkinson, or the place known as the W. M. Parkinson place or farm. The farm was not owned nor occupied by W. M. Parkinson estate but was owned by George Parkinson and his mother and his sister, and occupied by George Parkinson and his mother as their home.

The court has stated so often and so clearly and conclusively that an affidavit for a search warrant and a warrant issued thereon must be clear, and specific as to the place to be searched, the thing to be seized, and the person arrested or apprehended, that we deem it but reiteration to call this court's attention again to the numerous decisions on these points, except by referring to a few of the most recent decisions which are controlling and decisive. Powers v. State, 86 So. 862, 124 Miss. 425; Stribling v. State, 86 So. 897, 124 Miss. 141; Tucker v. State, 90 So. 845; Lowe v. State, 90 So. 78, 127 Miss. 340 at 345; King v. State, 66 Miss. 502; State v. Patterson, 95 So. 96, 130 Miss. 680.

Of course, no premises were occupied by the W. M. Parkinson estate, for no such person or place existed; but assuming for the sake of argument that there was such a person as W. M. Parkinson estate violating or capable of violating the law against the manufacture of liquor, would this description of the place be sufficient? This court has answered this question and settled this point. Rignall v. State, 98 So. 444, 134 Miss. 169; Miller v. State, 129 Miss. 774, 93 So. 26; Owen v. State, 98 So. 233; Rignall v. State, 98 So. 444, 134 Miss. 169; Taylor v. State, 98 So. 459; Smith v. State, 98 So. 344, 133 Miss. 730.

This appellant, of course, has a perfect right to object to the unlawful search of his farm, as was done in this case, and the knowledge and information obtained in finding and seizing the still to be used against him on a charge of manufacturing liquor. Section 23, Constitution of 1890; Falkner v. State, 96 So. 691.

A warrant which did not conform to affidavit nor authorize search of a particular place described therein is void. Morton v. State, 101 So. 379. Evidence obtained by means of search without valid warrant is inadmissible. Morton v. State, 101 So. 379; Helton v. State, 101 So. 701; Orick v. State, 105 So. 465; Comby v. State, 106 So. 827; Duckworth v. Town of Taylorsville, 107 So. 666.

The affidavit and warrant in this case are in fact "John Doe" affidavit and warrant, for there was no such person living and known to be living as W. M. Parkinson and no such place as W. M. Parkinson estate. Brewer v. State, 107 So. 379. Where officers making illegal search of defendant's house testify, not only to finding still therein, but to acts and conduct of defendant during the search bearing materially on his guilt, this was not rendered harmless by his merely admitting the finding of the still, he denying the still was in his possession. Nicaise v. State, 106 So. 817.

The district attorney admitted the invalidity of the affidavit and the search warrant issued thereon, and attempted to make out his case by Roberts, found in possession of and operating the still, and by Robert's brother-in-law, Watkins, and his friend and, witness Bruce; but failing in this, he was forced to put McCalbe on the stand and he testified that he was on Parkinson's, appellant's, place by virtue of a search warrant and that he searched his residence, premises, outhouses and automobile thereunder.

It is insufficient to show that the defendant was merely present with other parties at the still when it was being operated. Medlin v. State, 108 So. 177. Appellant, Parkinson, admits that he went with witness Bruce on two occasions to look for a drink and they found Roberts in possession and operating the still on both occasions and they both took a drink and left Roberts in possession of and operating the still, but that he, Parkinson, had no connection with the ownership or operation of the still. This evidence was uncontradicted by Roberts.

The state refused to introduce either the affidavit for the search warrant or the search warrant; therefore, the evidence should have been excluded. Webb v. State, 108 So. 442.

The case should be reversed and the defendant discharged.

J. A. Lauderdale, Special Assistant Attorney-General, for the state.

I. The motion to quash the indictment was properly overruled; in fact, the court should not have heard testimony on this motion. Blowe v. State, 130 Miss. 112.

II. The appellant was charged with manufacturing intoxicating liquor. The witnesses Bruce and Watkins testified that he went with them to the still where liquor was being manufactured and gave them drinks on various occasions. This testimony showed that appellant was exercising acts of ownership over the liquor at the still where same was made and at the time it was made, and these were circumstances showing that appellant had manufactured the liquor himself or that he had had it manufactured.

The appellant, a witness in his own behalf, in his direct examination admitted all of the facts testified to by these witnesses. Even though it was error to admit this testimony, the court below cannot be put in error for admitting the same, because there was no objection to this testimony except on the specific ground that the indictment was valid.

III. We admit that the affidavit for search warrant and the warrant under which the search of appellant's premises was made were void. However, under the facts in the case at bar, this error was without harm to the defendant.

(1) The appellant, a witness in his own behalf, testified to all the facts testified to by said officer. Not one word of his testimony conflicts with that of the officer. Blowe v. State, 130 Miss. 113, is applicable. See, also, Nicaise v. State, 106 So. 817.

(2) The testimony of the defendant alone conclusively shows that he was guilty. He received, used, and exercised acts of ownership over the unlawful products of said still. We submit that under these facts he was at least guilty of aiding and abetting in the manufacture of intoxicating liquor, and that under the law he was guilty as a principal. Section 751, Hemingway's Code; Cole v. State, 4 So. 577; Dean v. State, 85 Miss. 40; Osburn v. State, 99 Miss. 410; Fleming v. State, 108 So. 143; Bailey v. State, 108 So. 497; Love v. State, 108 So. 667.

The testimony of this appellant shows that he was an accessory before the fact; and, under the many decisions of...

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