Porter v. State
| Citation | 100 So. 377,135 Miss. 789 |
| Decision Date | 09 June 1924 |
| Docket Number | 24006 |
| Court | United States State Supreme Court of Mississippi |
| Parties | PORTER v. STATE. [*] |
APPEAL from circuit court of Jones county, Second District, HON. R S. HALL, Judge.
Ed Porter was convicted of the unlawful possession of intoxicating liquor, and he appeals. Reversed and remanded.
Reversed and remanded.
D. B. Cooley, for appellant.
I. The only question involved in this appeal is that touching the validity of the affidavit and search warrant. Since the trial of this case in the court below this court has decided that the omission of this phrase "does believe" from the affidavit renders the affidavit void. Turner v State, 98 So. 240; State v. Watson, 98 So. 241.
II. The search warrant is void because not issued by a justice of the peace. This search warrant was issued by a deputy city clerk. Section 1749, Code 1906, provides that a search warrant shall be issued by a justice of the peace. This court has uniformly held that laws authorizing searches and seizures are to be strictly construed against the state. Holberg Mercantile Company v. State, 95 Miss. 21; Livelar v. State, 98 Miss. 330; Turner v. State and Watson v. State, supra.
There being no authority of law for the issuance of a search warrant by a deputy city clerk, it necessarily follows that one issued by him is void. Since the affidavit and search warrant are both void, it was error to permit them to be introduced in evidence.
The Attorney-general for the state, confesses error.
The appellant, Ed Porter, was convicted in the circuit court of Jones county on a charge of having intoxicating liquor in his possession, and from the conviction and sentence he prosecuted this appeal.
The entire evidence upon which this conviction rests, which was introduced over the objections of appellant, was obtained by means of a search of appellant's wagon under a search warrant issued by a deputy clerk of the city of Laurel. The affidavit on which the search warrant was based was made before a deputy city clerk, and it recites that the affiant--" has reason to believe that intoxicating liquors are being kept or offered for sale or barter, or sold or bartered, or that they are being kept or given away in violation of law in the building described as wagon and occupants and the room described as occupied by Bud Porter in the city of Laurel, Jones county, Mississippi," etc.
The several assignments of error challenge the validity of this search warrant; the first contention of the appellant being that the search and seizure in question was illegal, because the affidavit on which the search warrant was based was void, in that it failed to aver that affiant "does believe," etc., as provided in chapter 115, Laws of 1908 (section 2088, Hemingway's Code). In the cases of Turner v. State, 133 Miss. 738, 98 So. 240, and State v. Watson, 133 Miss. 796, 98 So. 241, it was held that, under chapter 115, Laws of 1908 (section 2088, Hemingway's Code), an affidavit for a search warrant, which omits the phrase "does believe" and alleges only that the affiant has good reason to believe, is fatally defective, and that a search warrant issued upon such defective affidavit is illegal.
The affidavit and search warrant were also void for the reason that the affidavit was made before, and the search warrant issued by, a deputy city clerk. This precise question was decided in the...
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Moore v. State
......The power of the. legislature to authorize a search or seizure without a. warrant was not involved in any of those cases, and of them. only the cases of Butler v. State, 129. Miss. 778, 93 So. 3, Taylor v. State, 129. Miss. 815, 93 So. 355, and Porter v. State, . 135 Miss. 789, 100 So. 377, deal with the search of a vehicle. in which intoxicating liquor was being transported. They were. decided before the statute here under consideration, which. permits the search of a vehicle or boat without a warrant,. was enacted, and there was no ......
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...and W. A. Shipman, Assistant Attorney-General, for the state. The cases of Hampton v. State, 132 Miss. 154, 96 So. 166; Porter v. State, 135 Miss. 789, 100 So. 377; Morrison v. State, 140 Miss. 221, 105 So. McNutt v. State, 143 Miss. 347, 108 So. 721; Moore v. State, 138 Miss. 116, 103 So. ......
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...a clerk or deputy clerk to perform such judicial function. See Martin v. State, 190 Miss. 32, 199 So. 98 (1940), and Porter v. State, 135 Miss. 789, 100 So. 377 (1924). The arrest warrant was The state nevertheless contends that Lanier's arrest was justified pursuant to Mississippi Code Ann......
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