Salisbury v. State
| Decision Date | 25 March 1974 |
| Docket Number | No. 47802,47802 |
| Citation | 293 So.2d 434 |
| Parties | Henry SALISBURY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Sekul, Hornsby, Wallace & Blessey, Biloxi, for appellant.
A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
The appellant, Henry Salisbury, was convicted in the Circuit Court of Harrison County, Mississippi, of the possession of burglary tools and was sentenced to serve a term of two (2) years in the Mississippi State Penitentiary.
The appellant contends on appeal that he is entitled to a new trial and has assigned several grounds in support of his contention. We notice only those necessary in view of our holding in this case.
Officers of the sheriff's department of Harrison County, Mississippi, and certain members of the Federal Bureau of Investigation made an arrest of one James Tunnard D'Artois, who was wanted in Louisiana under a charge of murder. The Louisiana authorities were informed of the arrest, and one of them came to Harrison County. The Mississippi officers were told that the alleged murder was committed by D'Artois with a .22 caliber pistol. The Mississippi officers obtained a search warrant to search the apartment of appellant, where D'Artois had been staying before his arrest, in an effort to find the .22 caliber pistol, said to have been used in the Louisiana murder. The appellant was not at home. A copy of the search warrant was left on a television in a conspicuous place, and a careful search was made. The pistol was not found, but certain tools and equipment alleged to be used and useful in breaking and entering as burglary tools were discovered. The officers confiscated a heavy drill, a Transceiver (a walkie-talkie), a burning torch, gloves, an Ace Lock-Pick Kit in a black case, six ropes covered with plastic insulation, ski caps, a siren cable, and radio monitor crystals.
The appellant contends on appeal that the trial court erred in not sustaining the demurrer to the indictment because it is said the indictment does not charge 'intent to use the tools described for the purpose of breaking and entering.' The demurrer did not raise the point; it simply stated that the tools described were not burglary tools. The demurrer was properly overruled for two reasons: (1) One of the tools named in the indictment (the lock-pick kit) was designed to be used for the purpose of breaking and entering and was, therefore, a burglary tool per se, and (2) The indictment charged that the defendant 'did unlawfully, wilfully and feloniously have in his possession . . . certain tools, . . . etc.' The indictment, using the word 'felonious' means that the possession of the tools was a felony, and in order for the possession of ordinary tools to be burglary tools, the proof must show from the circumstances surrounding the possession that the tools had been used, or were to be used, to unlawfully break and enter. Sullivan v. State, 254 So.2d 762 (Miss.1971); Johnson v. State, 246 Miss. 182, 145 So.2d 156 (1962); and Fuqua v. State, 246 Miss. 191, 145 So.2d 152 (1962).
The possession of tools designed as or peculiarly adaptable for unlawful use of breaking and entering is made a crime in this state by Mississippi Code Annotated Section 97-17-35 (1972), which is in the following language:
Miss.Code Ann. § 97-17-35 (1972).
In Fuqua v. State, 246 Miss. 191, 145 So.2d 152 (1962), we said: (246 Miss. at 199, 145 So.2d at 154). However, the testimony in Fuqua showed that among the tools were found one-hundred and fifty (150) skeleton keys peculiarly adaptable to the commission of burglary.
There seems to be an underlying harmony in our opinions as to adaptation of ordinary articles and tools used to burglarize. The outstanding evidence in each case points to at least one of the tools readily recognized as a burglary tool. In Fuqua, supra, as above shown, many skeleton keys were obviously used to fit many locks. In McCollum v. State, 197 So.2d 252 (Miss.1967), the burglary alarm jumper found in the search of appellant's apartment was obviously a burglary tool.
Moreover, appellant did not raise an objection in the trial court that the indictment did not specifically charge intent to use the tools to break and enter, and it cannot now be raised on appeal. Mississippi Code Annotated Section 99-7-21, Note 2 (1972).
It is only in cases where the indictment does not charge an offense that defects in an indictment may be challenged on appeal for the first time. Cohran v. State, 219 Miss. 767, 70 So.2d 46 (1954).
We are of the opinion that it is a jury question as to whether or not the tools described in the indictment were intended to be used as burglary tools.
After the indictment was returned and before the trial, the defendant made a motion to suppress the evidence upon the ground that the articles seized by the officers were not described in the search warrant as being the thing searched for, as required by the State and Federal Constitutions.
The court, after hearing the testimony and argument, overruled the motion and permitted the search warrant and evidence obtained thereby to go to the jury.
On appeal, the appellant argues that the law requires the thing to be seized to be described in the search warrant and in the affidavit, citing the State and Federal Constitutions as authority. This is of course true where the thing to be seized is the thing for which the search is made. This rule does not apply, however, to things of contraband discovered while the officers are legally on the premises in obeyance to a lawful writ requiring them to perform a legal duty. he is duty bound to perform the order he isduty bound to perform the order requiring a search of the place designated in the warrant for the thing therein described. Mississippi Code Annotated Section 97-11-37 (1972).
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...of evidence connected with another offense are subject to seizure although not described in the search warrant." Salisbury v. State, 293 So.2d 434, 437 (Miss.1974); Gann v. State, 234 So.2d 627, 628-29 (Miss.1970). Finally, in interpreting Section 23, this Court has held "descriptions in a ......
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