Powell v. State
| Decision Date | 08 March 1978 |
| Docket Number | No. 49949,49949 |
| Parties | Carolyn POWELL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Richard W. Wise, Starkville, for appellant.
A. F. Summer, Atty. Gen., by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, BROOM and BOWLING, JJ.
BROOM, Justice, for the Court:
Marijuana possession is the offense for which Carolyn Powell (appellant) was convicted in the Circuit Court of Lowndes County, Mississippi. She appeals from a sentence of two years at the Mississippi Department of Corrections and a $500 fine. Her appeal is grounded on the assertions that (1) the evidence was insufficient to connect her with the contraband so as to support the jury verdict, and (2) the search warrant was invalid and not amendable because the affidavit for search warrant lacked a signature of the issuing authority. We affirm.
Search of the house for which appellant paid rent was made by authority of a search warrant issued on the night of January 20, 1976. Officer Billy Pickens of the Columbus Police Department obtained a search warrant for appellant's residence (rented from P. A. Yelverton, owner), and other officers assisted Pickens with the search at 5:55 a. m. on January 21, 1976. One plastic bag of marijuana was taken from the living room coffee table; other marijuana was taken from a small military ammunition box situated in the living room in front of the fireplace, and another quantity was taken from a larger ammunition box found in the closet of appellant's bedroom.
The aggregate quantity of the marijuana was about fourteen ounces. Felix Owens, a man who lived with appellant in the house, and the appellant herself were arrested and charged with marijuana possession. The warrant authorizing the search was obtained from Justice Court Judge Ellis S. Dale who failed to affix his signature to the affidavit. Testimony shows that Officer Pickens signed the affidavit after being placed under oath by Judge Dale, after which Dale wrote the date and signed "Justice Court Judge" on the affidavit (inadvertently failing to affix his signature).
First argument made in behalf of the appellant is that the state did not establish its case against the appellant for failure to show, in addition to appellant's physical proximity to the contraband substance, additional incriminating facts which connected appellant with the contraband. The correct rule in this jurisdiction is that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Sisk v. State, 290 So.2d 608 (Miss.1974).
Several cases involving possession of contraband found upon premises to which others have access have come before us and there is no rigid rule that can be stated to govern every conceivable case, but each case must be decided upon its peculiar facts. Although this case is close upon the facts, our judgment is that the evidence was sufficient to raise a jury issue. The record leaves no doubt that the house in which the contraband was found was rented by the appellant, who paid at least part of the rent. Marijuana was found in the closet of the bedroom which she claimed as her bedroom, and was also found in the living room. Appellant was present when the search and seizure was made and she accompanied narcotics agent Temple to her bedroom where she remained while he searched. No marijuana was found in the bedroom which the other adults (who were said to also live in the house) used as their bedroom. Although three other people were in the living room (where part of the substance was found) with appellant at the time of the search and seizure, the evidence was sufficient to raise the rebuttable presumption. The jury had the prerogative to pass upon the weight and worth of all of the testimony. Although the appellant herself did not testify, she presented a Ms. Starr who testified that she (Starr) had been to the house on different occasions. Witness Starr stated that a band practiced there at times and that none of the rooms were locked. Another defense witness, Gerald Berry, Jr.,...
To continue reading
Request your trial
-
Stringer v. State
...the independent viability of Section 23 of our Constitution. Penick v. State, 440 So.2d 547, 551-52 (Miss.1983); Powell v. State, 355 So.2d 1378, 1380 (Miss.1978); Rome v. State, 348 So.2d 1026, 1029 (Miss.1977); Simmons v. State, 301 So.2d 565, 568 (Miss.1974); Scott v. State, 266 So.2d 56......
-
Bevill v. State
...means of presenting to the issuing officer a basis upon which he may determine whether in fact probable cause exists. See, Powell v. State, 355 So.2d 1378 (Miss.1978). In discussing probable cause for search warrants, it was held in Hall v. State, 455 So.2d 1303 (Miss.1984), that "[p]robabl......
-
Read v. State
...obtained in a different way, viz, through independent police investigation. and is supportive of a search warrant. Powell v. State, 355 So.2d 1378 (Miss.1978), Prueitt v. State, 261 So.2d 119 Subsection 3(c) of the affidavit contains the following information: C. Your affiant having receive......
-
Roach v. State
...presumption is rebutted when there are no "additional incriminating facts" connecting the defendant to the contraband. Powell v. State, 355 So.2d 1378, 1379 (Miss.1978). The rule, as stated in Powell is as The correct rule in this jurisdiction is that one in possession of premises upon whic......