Pickle v. State
| Decision Date | 08 December 1924 |
| Docket Number | 24321 |
| Court | Mississippi Supreme Court |
| Parties | PICKLE v. STATE. [*] |
APPEAL from circuit court of Leake county, HON. G. E. WILSON, Judge.
Curtis Pickle was convicted of the unlawful possession of intoxicating liquors, and he appeals. Reversed and remanded for new trial.
Judgment reversed and cause remanded.
Jas. T Crawley and W. T. Triplett, for appellant.
I have read the record very carefully, and after reading it over several times, I do not find where the state ever showed the venue of its cause of action. That being true, it can be raised for the first time in supreme court, and it will necessarily cause a reversal. That being a burden resting on the state, and it also, being a burden on the state for the record to show that the correct venue was proven, or that venue was proven so that the court might have jurisdiction and it having failed to do so, the assignment of error filed as an amendment to the original assignment or error should be sustained.
I take it for granted that there will be no question raised about the right of an appellant to raise a question of jurisdiction for the first time in supreme court. Venue is a question of jurisdiction of course, and therefore can be raised here for the first time. It is absolutely necessary to prove venue before a conviction can stand. Coon v. State, 13 S. & M. 246; Thompson v. State, 51 Miss. 353; Isabel v. State, 58 So. 1; Norwood v. State, 83 So. 354.
Jas. T. Crawley and W. T. Triplett, for appellant.
The affidavit only authorized the search of a room in a building occupied by Curtis Pickle. Upon this affidavit a search warrant was issued, directing the search of said room or outbuildings, or on his premises, as will be seen from inspecting the search warrant. The search warrant can rise no higher than the affidavit authorizing the search. The affidavit is that which gives the officer issuing the search warrant the right to issue the search warrant. Sec. 23 of the Constitution. It is a fundamental, and basic right of the issuance of the warrant directing the search. The search warrant to be issued is limited in its scope to the description as set forth in the affidavit. Spears v. State, 99 So. 361; Sec. 23, Constitution of Mississippi; Tucker v. State, 90 So. 845; Owens v. State, 98 So. 233; Strangi v. State, 98 So. 340; Wash Williams v. State, 100 So. 195.
We submit that the affidavit was void because of uncertainty of description. Spears v. State, supra; Wash Williams v. State, supra.
E. C. Sharp, Assistant Attorney-General, for state.
With the exception that no mention is made of the fact that appellant himself went on the stand and admitted everything testified to by the state's witnesses, the statement of facts by appellant are correct. However, we respectfully call to the attention of the court the fact that appellant himself went on the stand, this being important for the reason that we are of the opinion that the search was not supported by a proper affidavit, the affidavit being, "That vinous, malt, alcoholic, intoxicating and spiritous liquors are being kept and offered for sale and barter and are sold and bartered (or are being kept to give away and are being given away to induce trade) in violation of law in a room of Curtis Pickle in a building occupied by Curtis Pickle, county of Leake, state of Mississippi," and the whiskey was found hidden in a barn belonging to appellant, the barn being about seventy-five yards from the house or room occupied by appellant. After the witnesses for the state, had testified to the finding of the whiskey in the barn, appellant went on the stand and admitted all of the facts testified to by the state's witnesses. Blowe v. State, 130 Miss. 112, 93 So. 577, 24 A. L. R. 1429.
Argued orally by J. T. Crawley, for appellant, and E. C. Sharp, Assistant Attorney-General, for state.
Curtis Pickle was convicted in the circuit court of Leake county for having intoxicating liquors in his possession in district 2 of said county. The prosecution came about by the issuance of a search warrant founded upon an affidavit in which affidavit it was alleged that the affiant "has reason to believe and does believe that vinous,...
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