Serio v. City of Brookhaven

• Decision Date: 13 March 1950
• Docket Number: No. 37443,37443
• Citation: 208 Miss. 620,45 So.2d 257
• Parties: SERIO v. CITY OF BROOKHAVEN.
• Court: Mississippi Supreme Court

Page 257

45 So.2d 257

208 Miss. 620

SERIO v. CITY OF BROOKHAVEN.

No. 37443.

Supreme Court of Mississippi, in Banc.

March 13, 1950.

E. C. Barlow Brookhaven, for appellant.

Cassedy & Cox, Brookhaven, for appellee.

McGEHEE, Chief Justice.

A reversal of the conviction in this case is sought on the grounds: (1) that it was error for the circuit court to permit the police justice to amend his certificate to the transcript of the record, (2) that the affidavit and search warrant did not contain a sufficient description of the property to be searched, (3) that neither the affidavit nor the search warrant recited that the affiant was a credible person, (4) that the circuit court erred in reassembling the jury to put its verdict in proper form, after the jurors had been discharged but had not left the courtroom, and (5) one of the twelve jurors was not a qualified elector.

There was an appeal to the circuit court taken by the appellant, Jimmie Serio, from a conviction in the court of the police justice of the City of Brookhaven, on the charge of an unlawful possession of intoxicating liquors. When the case came on for hearing in the circuit court, it was discovered that a printed form, as ordinarily used by the police justice when acting as an ex officio justice of the peace, had been used by the police justice in certifying to the transcript of the record on appeal from his court. The circuit court, over the objection of the defendant, permitted the police justice to amend the printed form used for certifying to the transcript of the proceedings had before him, which amendment consisted of striking out the printed words 'Ex officio Justice of the Peace' as they appeared underneath the signature of the person who had tried the case as police justice, and inserting in lieu thereof the words 'Police Justice of said City', the caption of the transcript having been changed from 'State of Mississippi' to 'City of Brookhaven'.

Section 1200, Mississippi Code of 1942, provides, among other things, that a 'justice of the peace, mayor or police justice of any city, town or village from whose decision an appeal shall be taken, shall at once transmit to the clerk of that court a certified copy of the record of the proceedings, with all of the original papers and process in the case, and the original appeal-bond given by the appellant, * * *. The justice, mayor, or police justice of any city, town or village shall, at all times, be allowed to amend his return according to the facts.' In this case, the affidavit to obtain a search warrant, the warrant itself, the affidavit charging the offense, the judgment entered by the court, and the appeal bond to the circuit court all disclosed that the case was tried before the city official as police justice. Hence, the amendment which the circuit court allowed the police justice to make to his certificate to the transcript of the proceedings, was an amendment of his return 'according to the facts.' He did not amend any of the original papers in the cause, nor the judgment rendered by him, but merely his certificate which certified to the fact that the original papers attached thereto, including the judgment rendered by the officer as police justice, were the original papers in the cause.

We are of the opinion that the amendment was properly allowed, and that the case of Washington v. State, 93 Miss. 270, 46 So. 539, 540, and other decisions relied upon by the appellant are not in conflict with our conclusion in this regard. For instance, the Washington case merely holds that a mayor may not by his verbal testimony amend a transcript 'so as to change it from the actual condition of the book.' In the instant case the officer amended the transcript so that it would conform to the actual condition of the record, since he had used a printed form intended for use by an ex officio justice of the peace, and had failed to strike out the words 'Ex Officio Justice of the Peace' under his signature and insert in lieu thereof the words 'Police Justice'.

Second, the appellant contends, as aforesaid, that the description of the property in the affidavit for the search warrant and in the search warrant is an insufficient description under the requirement of Section 23 of the Constitution of 1890 requiring that no search warrant shall be issued without probable cause, supported by oath or affirmation, specifically designating the place to be searched and the person or thing to be seized.

The description is of the premises of the defendant, Jimmie Serio, 'located at 97 feet on First Street by 148 feet on Warren Avenue, Lot A, Block 4, Swalm Subdivision', of the City of Brookhaven in Lincoln County, and the search warrant authorized the search of the 'dwelling house, out-houses, the premises, automobiles, or other vehicles owned or used by * * * the said Jimmie Serio' located as above stated.

Any description of places or things to be searched, which is sufficient to enable the officer to locate them with reasonable certainty, is in compliance with the Constitutional requirement. Borders v. State, 138 Miss. 788, 104 So. 145; Banks v. Jackson, 152 So. 844, 120 So. 209; Smith v. State, 187 Miss. 96, 192 So. 436; Matthews v. State, 134 Miss. 807, 100 So. 18; West v. State, Miss., 42 So.2d 751.

It appears that the Serio family or estate owned a tract of land which was 97 feet in width and fronting on First Street to the east thereof, and 148 feet in depth, bordering on Warren Avenue to the north; that the lot ran east and west; that the defendant, Jimmie Serio, resided on a portion of the lot described as 50 feet on Warren Avenue by 60 feet in depth in the northwest corner of the entire tract, and it was his house, garage, and automobile that were searched and where the intoxicating liquors was found. He readily admitted that the liquor belonged to him. But aside from this, we are of the opinion that the description was sufficient to enable the officer to locate with reasonable certainty the place to be searched and that he did locate the same by means of such description and without difficulty.

Third, it is contended by appellant, as aforesaid, that the search warrant was invalid because the affidavit therefor did not recite that the chief of police who made the same before the police justice was a credible person. Section 2614, Code of 1942, has the following caption: 'Affidavit for search warrant--contents--duty of officer taking affidavit' and the section then provides that: 'Upon the affidavit of any credible person that he has reason to believe and does believe: (1) That intoxicating liquor is being * * * possessed at any designated place * * *, which place is to be stated in the affidavit, in violation of the laws of the state; or (2) * * *; or (3) * * *; or (4) * * *', a search warrant shall be issued, etc.

It is to be noted that the statute does not require as one of the contents of the affidavit that the same shall recite that the affiant is a credible person, but merely provides that upon the affidavit of such a person that he has reason to believe and does believe certain facts stated in this Code section, the affidavit shall entitle the proper officer to issue a search warrant. In the case of Winters v. State, 142 Miss. 71, 107...