Sandifer v. State

• Decision Date: 08 December 1924
• Docket Number: 24508
• Court: Mississippi Supreme Court
• Parties: SANDIFER v. STATE. [*]

101 So. 862

136 Miss. 836

SANDIFER v. STATE. ^[*]

No. 24508

Supreme Court of Mississippi

December 8, 1924

Division B

1. INDICTMENT AND INFORMATION. Failure of state to prove venue necessitates reversal.

The state in a criminal case must prove the venue. A failure to so prove is jurisdictional, and necessitates the reversal of a cause.

2. CRIMINAL LAW. Neither the affidavit for search warrant, nor the warrant, is evidence of venue.

Neither the affidavit for a search warrant, nor the search warrant when introduced in evidence, is evidence of the venue.

3. CRIMINAL LAW. Neither court nor jury can infer from testimony that offense occurred in another county, that witness meant to state county where trial was being held.

When the only testimony as to venue is that the alleged offense occurred in another county, neither the court nor jury can infer that the witness meant to state the county where the trial was being held.

HON. E. J, SIMMONS, Judge.

APPEAL from circuit court of Copiah county, HON. E. J. SIMMONS, Judge.

Turner Sandifer was convicted of the unlawful possession of a distillery, commonly called a still, and he appeals. Reversed and remanded.

Judgment reversed and cause remanded.

M. S. McNeil, for appellant.

On this appeal there are two questions raised by the appellant: First: Is it necessary for the state to show by proof that the crime was committed in the county in which the defendant is being tried and in which the indictment charges the crime to have been committed? Second: Under Amendment 4 of the federal Constitution, section 23 of the Mississippi Constitution, and section 2088, of Hemingway's Code, can a lawful search warrant issue, commanding the officer to search more than one place, or must a search warrant be confined to one particular place?

Instead of laying the venue in Copiah county, it was shown affirmatively that the crime was committed in Pike county, Mississippi. It is too elementary and well settled that the state must prove the venue of the crime before the court will have jurisdiction for us to make any extended argument on this proposition. Nuson v. State, 1 Miss. 562; Thompson v. State, 51 Miss. 353; Vaughan v. State, 11 Miss. 553; Isabel v. State, 101 Miss. 371.

With reference to the second question: Nowhere in the Constitution or in the statutes do we find any authority for the issuance of a search warrant, commanding the officer to search more than one particular place, and yet in this case we have a search warrant commanding the officer to diligently "search the residence, premises, automobiles, and all outhouses."

The provision of our Constitution, guaranteeing to the citizens of our state personal rights, and liberties, including protection from unreasonable searches and seizures, should be given a broad construction, so as to effectuate the letter and the spirit of such provision. Tucker v. State, 128 Miss. 223.

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

I. THE AFFIDAVIT AND SEARCH WARRANT WERE PROPER AND VALID. It is contended by counsel for the appellant that the affidavit and search warrant in this case covered too much. There is no merit in appellant's contention. The search warrant introduced in evidence as an exhibit to deputy sheriff's testimony, R. 15, states that whereas complaint has been made, etc., that liquor is being kept for sale, etc., in violation of law on the premises occupied by Turner Sandifer in said county and state, District 5, therefore, we command you, etc., to search the "residence, premises, automobiles and all outhouses for said liquors and any vessels and appliances, making known to the occupant thereof, if any, your authority, etc., and to seize the vessels and bring them before the issuing justice, together with the body of Turner Sandifer. The return reads as follows: "Executed personally by searching the premises of Turner Sandifer and finding two quarts of whisky and equipment for making whisky, and by placing the said Turner Sandifer under arrest. This April 18, 1924, J. D. MILLER, Sheriff." The court will see that this is the common form of search warrant in use in this state, and that the officers were authorized by it to search on the premises occupied by Turner Sandifer, and while searching on these premises to search (1) the residence, (2) the premises, (3) automobiles, (4) all outhouses. It is quite clear that "automobiles" is used in the same sense as "outhouses and residence" and it appears as a matter of fact from the evidence that it was a broken down automobile on the premises in which the officers found part of this outfit hidden.

II. VENUE IN THIS CASE WAS SUFFICIENTLY PROVED. The court's attention is called to the fact that the affidavit for a search warrant was introduced in evidence as Exhibit "A" to the testimony of Deputy Sheriff Ramsey and is found on page 14 of the record. This affidavit is therefore, as much a part of the evidence in this case as any word spoken by...