Robinson v. State
| Decision Date | 15 June 1926 |
| Docket Number | 25784 |
| Court | Mississippi Supreme Court |
| Parties | ROBINSON v. STATE. [*] |
1. CONSTITUTIONAL LAW. If statute is susceptitile of two reasonable constructions, court will adopt one which is free from constitutional objections rather than one which would endanger constitutionality of act.
Where a statute is susceptible to two reasonable constructions, one of which is free from constitutional objections and the other would endanger the constitutionality of the act of the legislature, the court will adopt that construction of the statute which would render it constitutional.
2. INTOXICATING LIQUORS. Search of person before intoxicating liquor is found and lawful arrest made by officer based thereon is unauthorized (Laws 1924, chapter 244, sections 1 4, 5; Constitution, 1890, section 23).
Censtruing section 1, chapter 244, Laws of 1924, providing for searches for intoxicating liquor under named conditions and concluding with the direction to the officer to arrest the person found in possession and control of such liquor searched for, in connection with sections 4 and 5 of the act prescribing a form of affidavit and warrant, the statute does not authorize a search of the person until after intoxicating liquor is found and a lawful arrest made by the officer based thereon.
APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.
Gertrude Robinson was convicted of the possession of intoxicating liquors, and she appeals. Reversed and remanded.
Judgment reversed and cause remanded.
George L. Teat and M. Ney Williams, for the appellant.
This case presents the question of the right of an officer to search the person of the individual. From the evidence offered by the state one E. S. Chapman, a federal prohibition officer, made affidavit before a justice of the peace of Hinds county, praying that a search warrant be issued by said justice of the peace for the search of the residence, premises, property and person of Gertrude Robinson of Edwards, Hinds county, Mississippi. On this affidavit the justice of the peace issued a search warrant for the search of the residence, premises, property and person of Gertrude Robinson, and acting under the authority of said search warrant, the said E. S. Chapman, federal prohibition officer, and Hamp Simmons, a constable of Hinds county, made a search of her said residence, premises, property and person. The evidence of the state shows that the said officers had no warrant for the arrest of Gertrude Robinson; and at the time of her arrest and the search of her person, she was not engaged in the commission of a crime in the presence of the two officers. All of the evidence shows that the search of her home and her person was over her objection.
The search warrant held by the officers was totally void and unauthorized by law under the express decision of this court in Comby v. State, 106 So. 827, holding "that there is no statute in this state which authorizes the issuance of a warrant for the search of the person of an individual, and that it necessarily follows that the warrant under which the search was made was void, and the evidence procured thereby was inadmissible, citing Orick v. State, 105 So. 465."
The appellant further submits to the court that the evidence of the finding of the whiskey in a coat pocket in the home of the appellant was inadmissible because the same was procured by virtue of a void and illegal search warrant in "that the search warrant in question authorized the search of the person of the appellant, as well as the home, etc.," and, of course, the whiskey found on the person of the appellant and the evidence of its finding were wholly inadmissible, both on account of the illegal use of the void search warrant and also because of the illegal issuance of a void search warrant.
The appellant further assigns as error the action of the court in admitting the state's testimony herein, procured by virtue of the search made under the warrant aforesaid in this case, for the reason that the mandatory requirement contained in section 1, chapter 244, Laws of 1924, after seizure, directs that the officer "shall hold the same until disposed of by law," whereas the search warrant here used wholly omits the requirement that the property so seized should be held until disposed of by law, but directs that it be brought, if practicable, before the justice of the peace at his office. The two phrases are not synonymous.
This case should be reversed and the appellant discharged.
J. A. Lauderdale, Special Assistant Attorney-General, for the state.
The search warrant in Comby v. State, 106 So. 826, was issued in August, 1923, long prior to the enactment of chapter 244, Laws of 1924. The search warrant in the Comby case was held to be void, because "we have no statute which authorizes the issuance of a warrant for the search of the person of an individual," and that no right to search a person existed under the common law.
The search warrant in the case at bar was issued in 1924, after the enactment of chapter 244, Laws of 1924. This act specifically provides for and authorizes the search of the person of an individual. The search warrant in this case follows the form set out in the said Act.
The holding of the court in the Comby case, therefore, does not apply to this case. The search warrant is a legal and valid one under the provisions of said act.
Counsel for appellant also complain that the search warrant commanded the searching officer "and if practical bring them before me at my office." This is also in accordance with the provisions of said act. The evidence in the case was admissible; it was sufficient to support the verdict of guilty returned by the jury. Appellant complains of no other errors. I, therefore, submit that the judgment of the trial court should be affirmed.
George L. Teat and M. Ney Williams, in reply, for appellant.
The contention is made by the Attorney-General that because the forms for the affidavit and warrant set out in sections 4-5, chapter 244, authorize the search of the person, that said sections are mandatory. In this case, he is mistaken. The provisions of section 1 of the statute are mandatory. Turner v. State, 98 So. 240, 133 Miss. 738, but the form of the affidavit prescribed by section 1 is not mandatory but simply directory. See Winters v. State, 107 So. 281.
It is true that section 5, of the 1924 act, which purports to prescribe the form for the search warrant uses the words "or person," but section 5 is merely directory, whereas section 1 of said act does not contain the words, "or person," and it is mandatory and controlling. The controversy here is one involving a rule of evidence and rules of evidence derive their authority independent of statute. The Comby case was decided by this court in February, 1926, two years after the 1924 statute. The same rule was again announced by this court on April 5, 1926, in Duckworth v. Town of Taylorsville, 107 So. 666.
It is settled law in this state that there is not now, and for that matter there has never been, any statute or rule at common law for the issuance of a search warrant to search the person of an individual; and any attempt to do so renders the warrant void and the evidence procured thereby inadmissible. An instrument purporting to authorize the search of a home, dwelling and person of an individual is as worthless in the hands of an officer as would be a leaf from an Hostetter's Almanac.
Argued orally by G. L. Teat, for appellant.
The appellant was indicted, tried, and convicted in the Second district of Hinds county, Miss., on the charge of possessing intoxicating liquors, and sentenced by the circuit court to pay a fine of five hundred dollars and all costs and to serve a term of ninety days in the county jail.
The testimony upon which the appellant was convicted was procured upon a search of the place and of the person of the appellant. A portion of the intoxicating liquor found in said search was found in appellant's room in an old coat. After this was found and before the appellant was arrested, the officers searched appellant's person, removing from the room other persons who were there present. The officer ran his hand under appellant's clothing and found a bag containing liquor concealed underneath her clothing, which he procured and thereupon placed the appellant under arrest as directed in the search warrant, and filed a charge before a justice of the peace of the district charging that the defendant knowingly and unlawfully did have in her possession more than one quart of intoxicating liquor, to-wit, whiskey, against the peace and dignity of the state of Mississippi. The liquor found other than upon the person of the appellant was insufficient to make more than one quart of liquor, and consequently under the statute was insufficient to sustain the judgment and the sentence imposed upon the appellant.
The affidavit upon which the search warrant was procured was made by a Federal officer, E. S. Chapman, who made oath that he "has reason to believe and does believe that intoxicating liquors are being manufactured, possessed, sold or offered for sale, or given away, in violation of law, in the dwelling house, outhouse, upon the premises, in the automobile, or other vehicles, used or occupied by and on the person of Gertrude Robinson on the south side of the Alabama & Vicksburg Railroad, about two hundred yards west of the depot in the town of Edwards, Miss., in said county and state," and prayed for a search warrant "directing a search of said dwelling, outhouses, premises, automobiles or other vehicles and the person of the said Gertrude Robinson, and...
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