State ex rel. Blackburn v. Fox

Decision Date08 June 1956
Citation200 Tenn. 227,292 S.W.2d 21,4 McCanless 227
PartiesSTATE ex rel. Clarence BLACKBURN, et al. v. Floyd FOX et al. 4 McCanless 227, 200 Tenn. 227, 292 S.W.2d 21
CourtTennessee Supreme Court

Hugh C. Simpson and Dexter Christenberry, Knoxville, for plaintiffs in error.

E. R. Mynatt, Knoxville, for defendants in error.

PREWITT, Justice.

The plaintiff filed this Criminal Nuisance action against the defendant Floyd Fox under Chapter 2 of the Public Acts of 1913, 2d Extra Session, as amended, and he was permanently enjoined from selling whiskey in the City of Knoxville. The present contempt proceeding charges Fox with violating the existing injunction by selling whiskey on September 20, 1955, on his premises situated at 112 West Cumberland Avenue, in that City. The defendant was given a fine of $50 and a work house sentence of six months for contempt.

The proof shows that based on information received from a citizen, Police Captain Corcoran secured a warrant to search Fox's premises for whiskey. It seems that at the time an undercover police agent went to these premises with marked money and purchased whiskey from the defendant. On the same date of September 20th the undercover agent, after purchasing the whiskey, signaled the officer waiting nearby, indicating a purchase of whiskey had been made. Then the police captain and two patrolmen raided the place and found a substantial quantity of whiskey. They also found the marked money in Fox's cash register.

The Police Captain testified that he received his information, and on the same date signed the affidavit which contains the statement that a whiskey offense was being committed at 112 West Cumberland Avenue, on September 20th by the defendant Fox. The police captain swore to the affidavit before the municipal judge. The judge attested the execution of the affidavit by his jurat, but failed to insert the date of it in the blank spaces. The form which contains the affidavit also includes the search warrant. The judge signed the warrant which is dated September 20, 1955. The return of the police captain is also dated September 20th. The evidence conclusively establishes that the entire transaction took place on September 20, 1955.

Fox interposed but one defense, that is that the affidavit of the police captain upon which the writ was issued does not bear a date.

In Cornelius on the Law of Search and Seizure Section 179, page 402 it is stated:

'Where the affidavit for the search warrant is not dated, but proof is introduced that the same was executed on a given date, the same will be held sufficient.' See Blackburn v. Commonwealth, ...

To continue reading

Request your trial
13 cases
  • State v. Henning
    • United States
    • Tennessee Supreme Court
    • June 22, 1998
    ...exists is an indispensable prerequisite to the issuance of a search warrant in this State. Id.; see also State ex rel. Blackburn v. Fox, 200 Tenn. 227, 230, 292 S.W.2d 21, 23 (1956). The affidavit must set forth facts upon which a neutral and detached magistrate, reading the affidavit in a ......
  • State v. Keith
    • United States
    • Tennessee Supreme Court
    • September 28, 1998
    ...is an indispensable prerequisite to the issuance of a search warrant in this State. Id.; see also State ex rel. Blackburn v. Fox, 200 Tenn. 227, 230, 292 S.W.2d 21, 23 (Tenn.1956). The law in this State is clear that a written and sworn affidavit is an essential prerequisite to the issuance......
  • Com. v. Hernandez, 384
    • United States
    • Pennsylvania Superior Court
    • April 29, 1991
    ...is to be contained in an affidavit of probable cause. See Id., citing Tenn.R.Crim.P., Rule 41(c). See also Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21 (1956) (It is from the contents of the affidavit for search warrant that the magistrate determines the existence of probable cause). With......
  • State v. Reynolds , No. M2003-02991-CCA-R3-CD (TN 2/28/2005)
    • United States
    • Tennessee Supreme Court
    • February 28, 2005
    ...is an indispensable prerequisite to the issuance of any search warrant. Tenn. Code Ann. § 40-6-103; State ex rel. Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21, 23 (1956). It must establish probable cause. Tenn. Code Ann. § 40-6-104; Tenn. R. Crim. P. 41(c). Probable cause has been general......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT