Seals v. State
| Decision Date | 08 December 1928 |
| Citation | 11 S.W.2d 879,157 Tenn. 538 |
| Parties | SEALS v. STATE. |
| Court | Tennessee Supreme Court |
Appeal from Criminal Court, Hamilton County; Chas. W. Lusk, Judge.
Charles Seals was convicted for possessing intoxicating liquor, and he appeals. Affirmed.
T. O Jewell, of Chattanooga, for appellant.
Nat Tipton, Asst. Atty. Gen., for the State.
This is an appeal by Charles Seals from a judgment rendered upon a conviction for possessing intoxicating liquor.
The prosecution followed a discovery by peace officers of a barrel containing about 30 gallons of whisky in a coalhouse which was a part of premises fronting upon an alley in the rear of business property fronting on Cowart street, in the city of Chattanooga.
The proof offered by the state justified the inference and finding of the jury that the premises fronting upon the alley, consisting of a frame building and the coalhouse, had been rented by the plaintiff in error for use in connection with a restaurant which he operated in one of the business houses fronting on Cowart street, in the same block. The frame building on the alley was equipped with a piano, and the evidence tends to show that it was operated as a place for dancing and entertainment in connection with the restaurant.
The defendant denied that he had rented the building on the alley, and the owner testified that he had rented it to a man named Miller. The proof shows, however, that Miller had originally rented both the restaurant building and the building on the alley; that he had sold the restaurant business to the plaintiff in error, and had left Chattanooga three or four months before the date of the finding of the whisky, and the owner of the alley building had continued to collect his rent at the restaurant after Miller's departure. The two officers testified that, before the search was made, plaintiff in error had told them that he had rented the alley building, and requested them to forget that the building was there.
We think the clear preponderance of the evidence is that the plaintiff in error operated the alley building in connection with his restaurant, and the finding of the whisky on such premises justified the inference that it was in the possession of the plaintiff in error; his denial of any connection with the premises having been found to be false.
An assignment of error is directed at the ruling of the trial judge permitting one of the officers to testify in rebuttal that plaintiff in error had told him that he had rented the place in order to give entertainments there, etc. It is contended that, as a condition precedent to the admission of this testimony, the plaintiff in error must first have been asked about it, with the time and place specified in the question.
The objection was properly overruled by the trial judge, since the testimony of the officer was not offered merely for the purpose of impeaching the plaintiff in error as a witness but constituted substantive evidence of the guilt of the plaintiff in error, as an admission of possession and control of the premises on which the whisky was found.
Plaintiff in error complains that the trial judge was in error in overruling a number of objections to the testimony of the officers as to the finding of the whisky, based upon alleged fatal defects in the search warrant, pursuant to which the officers were acting.
It is first contended that the search warrant was void because procured on Sunday.
The issuance of a search warrant by a justice of the peace is a judicial act. Hampton v. State, 148 Tenn. 155, 252 S.W. 1007; Craven v. State, 148 Tenn. 517, 256 S.W 431.
In Moss v. State, 131 Tenn. 94, 100, 173 S.W. 859, 860 (Ann. Cas. 1916B, 1), this court said:
"In the absence of a statute authorizing it, there can be no doubt that it is unlawful for a court to do any judicial act on Sunday."
Statutes reviewed in Moss v. State, supra, provide for abatement of process issued on Sunday, but sections 4529-4533 of Shannon's Code (all editions) expressly provide for the issuance of "civil process" on Sunday, upon the execution of an affidavit showing the necessity therefor. No such express provision is made for the issuance of process in criminal cases.
Section 6991 of Shannon's Code authorizes the issuance of process "in any criminal prosecution on behalf of the State" at any time.
Section 6993 authorizes arrests by officers for public offenses "on any day and at any time."
Section 6994 authorizes arrests by private persons of persons charged with a felony "on any day and at any time."
Section 5940 of Shannon's Code authorizes a justice of the peace to try any cause that may be brought before him at any time and at any place within the county, unless expressly prohibited by some positive provision of the Code.
After referring to the provisions of these Code sections, this court, in Moss v. State, supra, said:
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