Peters v. State

• Decision Date: 10 November 1930
• Docket Number: 28966
• Citation: 158 Miss. 530,130 So. 695
• Court: Mississippi Supreme Court
• Parties: PETERS v. STATE

130 So. 695

158 Miss. 530

PETERS v. STATE

No. 28966

Supreme Court of Mississippi

November 10, 1930

Division A

Suggestion of Error Overruled November 24, 1930.

APPEAL from circuit court of Covington county, HON. W. L. CRANFORD Judge.

Tillman Peters was convicted of possessing a still, and he appeals. Affirmed.

Affirmed.

M. U. Mounger and E. L. Dent, of Collins, for appellant.

Were the case of the state uncontradicted, it would not be sufficient with which to convict the defendant because there is no evidence to show that Tillman Peters had ever had manual possession or use of the still and there was no evidence whatever to show that he knew that he had either manual or constructive possession of the still.

The district attorney offered the substituted affidavit and substituted writ as evidence in the case over the objection of the defendant and exceptions. There was no announcement made in the court that the papers were lost; no notice was given to the defendant that the papers were lost; no order was made that the papers were substituted.

E. L. Dent, of Collins, for appellant.

The affidavit does not allege that appellant had stored, kept, owned, controlled, or possessed vinous, malt, alcoholic, intoxicating or spirituous liquors, for the purpose of sale in violation of law, and is defective.

Estes v. State (No. 27673), 120 So. 444; Chapter 244, Laws of 1924; Section 2238, Hemingway's 1927 Code.

The affidavit does not specially designate the place to be searched as required by section 23 of the Constitution of the state of Mississippi.

Spears v. State, 99 So. 361.

The affidavit does not charge that a credible person has reason to believe and does believe etc., as required by section 2238, Hemingway's Code of 1927.

Turner v. State, 133 Miss. 738, 98 So. 240.

M. U. Mounger, of Collins, for appellant.

Appellant objected to the void affidavit and writ. Where an objection to evidence is distinctly made and overruled it need not be repeated to the same class of evidence save the objection.

38 Cyc. 1399; Barton v. Kane, 17 Wis. 37, 84 Am. Dec. 728.

Forrest B. Jackson, Assistant Attorney-General, for the state.

There was no objection to the introduction of evidence secured by reason of the search. If the affidavit and search warrant were invalid, it is necessary for the defendant secured by the search before he can urge in the supreme court that the lower court committed error in allowing the introduction of such testimony. There being no objection to the introduction of the evidence and the defendant having taken the stand and admitted the possession of each of the articles described, it was immaterial whether a valid search warrant had been secured.

Brown v. State, 119 So. 176, 152 Miss. 195; Rawls v. State, 120 So. 211, 152 Miss. 885.

Argued orally by M. U. Mounger, for appellant, and by Forest B. Jackson, Assistant Attorney-General, for appellee.

OPINION

McGowen, J.

In the lower court Tillman Peters, the appellant, was sentenced to serve a term of one year in the state penitentiary for having in his possession a still.

Officers making a search found a can with a hole in the top, a trough with a pipe attached, and the pipe crooked to fit the can. Around the connection of the pipe and the trough there was wet mud daubed when they found it, and likewise wet mud around the hole in the can. In the house there was a half barrel of mash. The officers swore that what they found constituted a complete still for the manufacture of whisky, and that they smelled the mash or beer all around the place.

The appellant testified that he had all these articles in possession, but denied that the pipe was crooked. That was the only material difference between his testimony and that of the officers who made the search.

Counsel for the appellant relies mainly on the admission of the evidence of the search and of the search warrant and affidavit over his objection, and strenuously insists that he is entitled to reversal for that reason.

Leaving out of view the evidence of the appellant himself that all the articles described by the officers were found in the search, except his denial that the iron pipe was so crooked as to fit the can, the objection cannot be considered here for the simple reason that counsel for the appellant made a specific objection which did not attack the validity of the search warrant and affidavit nor did it make known to the court...