Patterson v. State
| Citation | 179 Miss. 758,176 So. 603 |
| Decision Date | 08 November 1937 |
| Docket Number | 32785 |
| Court | United States State Supreme Court of Mississippi |
| Parties | PATTERSON v. STATE |
Suggestion Of Error Overruled November 22, 1937.
APPEAL from circuit court of Simpson county HON. EDGAR M. LANE Judge.
Albert Patterson was convicted of unlawfully possessing intoxicating liquor, both in a justice of the peace court and in the circuit court, and he appeals. Affirmed.
Affirmed.
King & Berry, of Mendenhall, and G. L. Martin, of Prentiss, for appellant.
We submit that the affidavit was absolutely null and void, for the reason the words charging any crime "wilfully and unlawfully" were omitted from the original, and no crime could be charged without these. An affidavit is essential to confer jurisdiction.
Bigham v. State, 59 Miss. 529.
It is true we have a statute permitting amendments, but when the original affidavit is absolutely void and not merely irregular, to permit the making of an entirely new affidavit would be, we respectfully submit, giving the circuit court original jurisdiction in misdemeanours on mere information and without indictment and contrary to Section 27 of the Constitution.
Carlisle v. Gunn, 68 Miss. 248, 8 So. 743; Gibson v. Carrier, 83 Miss. 234, 35 So. 315.
If the district attorney can take an absolutely void affidavit and by amendment make it into a vital thing, then he is the one man who can indeed make a thing out of nothing. If the original affidavit was absolutely void, the justice of peace judgment was void, and how could the circuit court try the case in the absence of a judgment from the justice of peace court? It seems that the cause, at most, would still be pending in the justice of peace court.
The amended affidavit charged no crime.
Our court has held that the omission of the auxiliary "did" from an indictment voids it.
Willis v. State, 113 Miss. 838, 74 So. 677; Section 26 of the Constitution.
The amended affidavit charged no crime for it was drawn to cover Chapter 210, Laws of 1922, and that law has been dead and gone for years. There is no "quart law" in this state now. Consequently defendant was tried and convicted on a dead-and-gone statute.
The evidence shows that the sheriff went to search Vardaman Smith's place and premises; that he had a search warrant, which was called for at the trial, but not produced. This search warrant was never served. The evidence plainly shows the sheriff left the deputies out on one side and near the store and went sniping and searching in the rear. That was no way to legally serve a search warrant. The evidence shows that the sheriff was a trespasser ab initio. He says he was not on Vardaman Smith's premises, but the evidence shows he was within the curtilage and that the whole object of these exploratory movements were to get evidence of liquor at Vardaman Smith's place. Patterson was living at the time with his daughter and he had the right of the protection that Smith had against a search. It is unnecessary to cite authorities at length.
The court refused the following instruction: "The court instructs the jury that you do not have to believe the defendant innocent to find him not guilty."
The defendant has the right, we submit, to inform the jury of the presumption of innocence and the fact that he does not have to prove his innocence. The court should accord him every right he has under the law. The presumption of innocence was not submitted in any other instruction. The defendant asked for but three instructions and this one was refused. We say it should have been granted.
W. D. Conn, Jr., Assistant Attorney General, for the State.
This court has heretofore, in many cases, held that an affidavit charging a misdemeanour before a justice of the peace may be amended on appeal to the circuit court so as to charge the offense intended to be charged in the affidavit.
Moran v. State, 137 Miss. 435; Coulter v. State, 75 Miss. 356, 22 So. 872; Triplett v. State, 80 Miss. 379, 31 So. 743; Brown v. State, 81 Miss. 137, 32 So. 952; Cannon v. State, 140 Miss. 217, 105 So. 501; Sec. 1292, Code of 1930.
The amendment in this case was such as to bring the merits of the case fairly to trial on the charge intended to be set out in the original affidavit.
The motion of the district attorney for permission to amend the affidavit plainly shows that the verb "did have" was to be substituted for the verb "had" in the affidavit.
Appellant says that the affidavit, as amended, charged no offense because the "quart law" was dead and gone and had been dead and gone for years. We submit that the allegations of the amount, as stated in the affidavit, should be treated as surplusage.
Jennings v. State, 118 Miss. 616, 79 So. 813; Simmons v. State, 109 Miss. 605, 68 So. 913; White v. State, 153 So. 387.
The record shows that the sheriff was searching land which was not in the possession or under the control of this appellant. He had no right to object to the control of this appellant. He had no right to object to the search of premises belonging to others. The appellant, himself, expressly denied that he lived there, but stated that he was visiting his kin on adjoining premises. So far as appellant was concerned, the sheriff was no trespasser, because he was invading no right of appellant and a search of persons and property which is forbidden by our constitution without warrant or probable cause is such only as constitutes a trespass.
Goodman v. State, 158 Miss. 269, 130 So. 285; Ashley v. State, 150 Miss. 547, 117 So. 511; Polk v. State, 167 Miss. 506, 142 So. 480.
The use of a flash light by the sheriff in discovering appellant was no trespass.
Daniels v. City of Gulfport, 146 Miss. 517, 112 So. 686.
The officer had information that whiskey was being delivered to Vardaman Smith's place on that night. Evidently, well knowing the favored trick of a bootlegger of concealing his liquor on premises not owned by him, the officer looked over the adjoining premises first. He heard the bottles rattling. He observed with his flash light appellant transferring whiskey bottles from the case to the lard can. Certainly, such information was sufficient to justify the sheriff in making an arrest and seizing the whiskey.
Farmer v. State, 150 Miss. 776, 115 So. 884; Baldwin v. State, 175 Miss. 316, 167 So. 61.
The refused instruction that "You do not have to believe the defendant innocent to find him not guilty," does not go far enough and state what is necessary to convict. Standing by itself, the instruction is calculated to mislead the jury and consequently, we submit that it was proper for the trial court to refuse it.
Argued orally by Ovie L. Berry, for appellant, and by W. D. Conn, Jr., for the State.
In this case the appellant, ...
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