Pickle v. State

• Decision Date: 05 November 1928
• Docket Number: 27452
• Citation: 151 Miss. 549,118 So. 625
• Court: Mississippi Supreme Court
• Parties: PICKLE v. STATE. [*]

118 So. 625

151 Miss. 549

PICKLE v. STATE. ^[*]

No. 27452

Supreme Court of Mississippi

November 5, 1928

Division B

1. CRIMINAL LAW. Affidavit and, search warrant must be produced before evidence in search of premises is received, if objection is made thereto; proof must show loss of affidavit and search warrant and substantial contents before evidence is admissible.

To authorize admission of evidence obtained by a search of a person's premises, the affidavit and search warrant must be produced before the evidence is received, if objection is made thereto. If the affidavit and search warrant have been lost, not only must the proof show the loss, but should also show substantially the contents of the affidavit and warrant.

2. CRIMINAL LAW. Intoxicating liquors. Circumstantial evidence to amount to proof, must be consistent with guilt and inconsistent with reasonable theory or hypothesis of innocence; evidence held, insufficient to sustain conviction for possession, of integral parts of still.

Before circumstantial evidence can amount to proof, it must not only be consistent with guilt, but should be inconsistent with any reasonable theory or hypothesis of innocence. The evidence in this case examined, and held, insufficient to sustain a conviction.

HON. G E. WILSON, Judge.

APPEAL from circuit court of Neshoba county, HON. G. E. WILSON, Judge.

Sidney Pickle was convicted for having in possession the integral parts of a still, and he appeals. Reversed and rendered.

Judgment reversed.

Richardson, Pierce & Sanford, for appellant.

Cited: Hazelhurst v. Byrd, 101 Miss. 57; Jobe v. State, 104 Miss. 860; Jennings v. State, 118 Miss. 619; Cumberland v. State, 110 Miss. 521; Simmon v. State, 106 Miss. 732; Powers v. State, 86 So. 862; Anderson v. State, 96 So. 163; Harness v. State, 97 So. 65; Breazeale v. State, 97 So. 525; Medlin v. State, 108 So. 177; Hogan v. State, 127 Miss. 107, 90 So. 99.

James W. Cassedy, Jr., Assistant Attorney-General, filed a brief for the State.

Argued orally by W. W. Pierce, for appellant, and James W. Cassedy, Jr., for appellee.

OPINION

ETHRIDGE, P. J.

The appellant was indicted, tried, and convicted for the unlawful and felonious owning, controlling, and knowingly having in possession the integral parts of a still. It appears that the sheriff of the county had some information which led him to believe that appellant was operating a still, or had possession of a still. The sheriff went to a justice of the peace, made out some kind of affidavit, and procured a search warrant--neither of which were produced on the trial, but appear to have been lost. There was no proof of the contents of the affidavit, nor of the search warrant; but the sheriff, accompanied by some of his deputies, and two deputy sheriffs from Attala county, went to the place of the appellant, and served him with said warrant, then proceeded to search his premises. They found no intoxicating liquor, or still, or parts thereof, at his residence, or in the outbuildings. They went along a pathway leading from his residence in a northerly direction, and some distance from his house this pathway forked. One of these became dim after going a short distance, and the sheriff decided that it had not been traveled recently; but a short distance from appellant's residence, and on his premises, the sheriff and his deputies discovered a track which appeared to have gone from the house northward, and the same track returned toward the house. After going beyond the limits of the appellant's land, one of the trails, which seemed to have been more traveled than the other, led to where some barrels of mash were situated. These barrels were covered with boards, some sawed and some riven. Further along the trail, some distance from this mash, were found certain parts of the distillery, consisting of a zinc tub, and another zinc tub from which the rim had been cut, and which had a hole in the bottom. This was placed in the first tub, bottom upwards, and the point of connection between them had been daubed with mud. They also found at said place a copper worm, and on the pathway between the appellant's house and the point at which the mash was found, were other places which, the witness stated, had been used as stills. Neither the barrels of mash nor the parts of the distillery were on the premises of the appellant. The sheriff and his deputies took some of the boards from the barrel of mash, and carried them to the appellant's house, where they were compared with the boards used in building his garage. These witnesses testified that the pieces fitted where the sawing was done, and that the grain in the boards was the same. They also found on appellant's land, some distance from his residence, a zinc rim or top which had been cut from a zinc tub.

The appellant was left at the house, where the warrant was served upon...