Reynolds v. State

• Decision Date: 13 October 1924
• Docket Number: 24144
• Citation: 136 Miss. 329,101 So. 485
• Court: Mississippi Supreme Court
• Parties: REYNOLDS v. STATE. [*]

101 So. 485

136 Miss. 329

REYNOLDS v. STATE. ^[*]

No. 24144

Supreme Court of Mississippi

October 13, 1924

Division B

APPEAL from circuit court of Leflore county., HON. S. F. DAVIS Judge.

Paul Reynolds was convicted of unlawful possession of a still, and he appeals. Affirmed.

Case affirmed.

Gardner, Odom & Gardner, for appellant.

I. Plea of former jeopardy. As to the plea of former jeopardy, the procedure of the district attorney should not be sanctioned by this court. Here, the state confessed the former indictment, trial, conviction and sentence of the appellant to one year in the penitentiary for the same offense, and further that said conviction was in effect when the appellant's plea of former jeopardy was filed. Then at this stage of the trial the court granted a new trial on the old indictment, whereupon the district attorney entered a nolle prosequi to the former indictment upon the theory that said former indictment and conviction were void, because said indictment did not negative the exceptions set out in chapter 211, Laws of 1922. There are at least two valid reasons why the state's answer was insufficient in our judgment.

The answer shows affirmatively that the lower court did not enter a nolle prosequi to the former indictment, hence the former indictment is still pending. The answer states that the district attorney himself did this. Again, since the state by its district attorney confessed the former plea of jeopardy and attempted to avoid its effect by showing that the former conviction was had under a void indictment the burden of proof was upon the state to show the facts alleged in its answer by way of avoidance. This it did not do because no proof at all was introduced and the answer was no proof since it was traversed by appellant's motion made under oath. Having failed to meet this burden, the motion to strike should have been sustained and likewise the plea of former jeopardy.

II. Evidence incompetent. The evidence upon which the state relied for a conviction was incompetent and should have been excluded because the search was without authority of law and in violation of section twenty-three of our state constitution for numerous reasons, as follows:

1. It does not appear that a proper affidavit was made upon which a valid search warrant could issue. Such affidavit was essential.

2. The return of the search warrant showed affirmatively that same was not served on the appellant personally and does not state "that appellant was not found in the county."

In chapter 58 of Hemingway's Code, on Process, by section 2933 thereof, three methods only are provided for service of process. The statute is plain and cannot be misunderstood. The provisions are clearly mandatory. Glen v. Wragg, 41 Miss. 654. This mandate of the law has been ignored and the search was made without legal authority.

3. A. W. Evans, a justice of the peace of supervisor's district No. 3, had no authority to issue a search warrant to search in another supervisor's district and to make the same returnable before him. Specific objection was made to the search warrant on this ground when the state offered the same in evidence. Our position seems to be sustained in Falkner v. State, 98 So. 345.

4. Again, no lawful search warrant can issue for the search of the integral parts of a still in this state. No machinery has been provided in such cases. The constitution only warrants legislation to provide for searches and seizures within certain limitations and without express legislation on the subject no search or seizure could be made. Thus far, our lawmakers have only authorized searches and seizures in the following cases: (a) Cocaine, section 623, Hemingway's Code; (b) Stolen Goods, sections 1303 and 1332 Hemingway's Code; (c) Intoxicating liquors, being kept or offered for sale or barter or sold or bartered or that they are being kept to be given away or are being given away to induce trade. Section 2088, Hemingway's Code.

It will probably be contended, however, that the search and seizure for the integral parts of a still are authorized by section 5 of chapter 189, Laws of 1918. But in this view we are not prepared to agree because the only foundation for such a claim is found in the clause "and may be searched for and seized under the laws of this state." What laws? Certainly not those relating to cocaine or stolen goods, and section 2088 of Hemingway's Code, authorizing the search for intoxicating liquors would not fit where a search was to be made for the integral parts of a still. Section 2088 Hemingway's Code, is specific as to what may be searched for thereunder, namely, intoxicating liquors. By no stretch of imagination could the integral parts of a still be read into this section.

Our court has held uniformly that statutes authorizing searches and seizures must be strictly construed against the state. Turner v. State (Miss.), 98 So. 240; Livelar v. State, 98 Miss. 330, 53 So. 681. The legislature agreed with us in this view because at its 1924 session, chapter 244, Laws of 1924, in the law, was remedied and section 2088 of Hemingway's Code, was amended so as to authorize a search for and seizure of the integral parts of a still.

III. There was manifest error in the admission of evidence over appellant's objection. Mere expressions of the opinion of the witness calculated to prejudice appellant's rights were admitted. In both instances the witness should only have been allowed to state the facts and not give his opinion, because it is for the jury alone to draw conclusions from the facts in evidence. Johns v. State, 95 So. 84; Cumberland Telephone Co. v. State, 110 Miss. 521, 70 So. 695; Herring v. State, 122 Miss. 647, 84 So. 699; Pearson v. State, 97 Miss. 841, 53 So. 689.

IV. It was error for the court to refuse to permit the appellant to show that his wife had also been indicted for the same offense. She contended that all of the articles found by the officers, which she admitted were found, belonged to her. This right was denied the appellant. Anyhow, this was material and important, since under the state's theory, the still belonged to appellant, when appellant contended that what the officers found belonged to his wife.

V. The proof offered is insufficient to support the verdict. At most, the testimony in this case only raises a presumption of guilt. No positive evidence was offered to show that appellant knowingly had the still in his possession. The statutes denouncing the crime especially require that the possession be known to the accused. If the state's testimony raised any presumption of guilt, this was offset, we submit, by the legal presumption of innocence.

In addition to this, appellant's wife took the stand and testified positively that the articles found by officers belonged to her and not the appellant. If any crime was committed under the wife's confession she was the guilty party and not the appellant. When we bear in mind that the state's case rests solely upon circumstantial evidence and then reflect as to the character of the circumstances shown, we readily see that two reasonable theories arise in this case. Under the testimony in this case, we respectfully invoke and confidently rely for a reversal on the rule established by a long list of cases in this state, holding in substance that circumstantial evidence is never sufficient unless it proves guilt beyond a reasonable doubt and to the actual exclusion of every other reasonable hypothesis. Algeri v. State, 25 Miss. 584; Caleb v. State, 39 Miss. 721; Pitts v. State, 43 Miss. 472; James v. State, 45 Miss. 572; Webb v. State, 73 Miss. 461, 19 So. 238; Haywood v. State, 90 Miss. 461, 43 So. 614; Williams v. State, 99 Miss. 453, 54 So. 949; Ann. Cas. 1913E, 426; Miller v. State, 99 Miss. 226, 54 So. 838.; Irving v. State, 101 Miss. 283, 57 So. 913; Byrd v. Hazlehurst, 101 Miss. 57, 57 So. 360; Simmons v. State, 106 Miss. 732, 64 So. 721; Hogan v. State (Miss.), 90 So. 99; Sorrels v. State (Miss.), 94 So. 209.

F. S. Harmon, Assistant Attorney-General, for the state.

I. The plea of former jeopardy was properly overruled. Appellant was indicted, tried, convicted and sentenced to one year in the penitentiary for the same offense at a prior term of the circuit court, but a motion for a new trial made by appellant's counsel was still pending and undisposed of. The indictment under which this former conviction was secured, was void because it did not negative the exceptions set out in chapter 211, Laws of 1922. Realizing this fact, the district attorney had appellant re-indicted at this term of court. Appellant counsel then answers this second indictment by interposing a plea of former jeopardy setting up the fact of former indictment, trial, conviction, and sentence. With this plea of former jeopardy filed and before any testimony whatever was taken in this case, and before the record shows that the jury had ever been empanelled, the court announced that the motion for a new trial in the former cause was sustained. Immediately thereafter, the district attorney had a nolle prosequi entered in said former cause. Thereafter, the jury was empanelled, evidence introduced and a conviction had under this new indictment.

All that is necessary is that the court's permission be obtained when a case is nolle prossed. The replication of the district attorney states that the indictment was nolle prossed by the state and since the motion of appellant to strike out the state's answer to the defendant's special plea, did not set up any irregularity in the nolle prosequi of the former indictment said motion was properly overruled and defendant should not now be allowed to complain. See section 1293, Hemingway's Code. As a matter of fact said section...