Strangi v. State

• Decision Date: 17 December 1923
• Docket Number: 23318
• Citation: 134 Miss. 31,98 So. 340
• Court: Mississippi Supreme Court
• Parties: STRANGI v. STATE

98 So. 340

134 Miss. 31

STRANGI v. STATE

No. 23318

Supreme Court of Mississippi

December 17, 1923

Division A

Suggestion of Error Overruled. Jan. 7, 1924.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

T Strangi was convicted of the unlawful possession of intoxicating liquors, and he appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Mize & Mize, for appellant.

The peremptory instruction requested by the defendant should have been given. The defendant was not at home, and the officers had no authority on his premises, or in any of his buildings, unless armed with a valid search warrant. Now, the officers had no authority to search anything except the building occupied by T. Strangi as store and residence, of Mississippi City.

The evidence disclosed here shows that there was nothing found in the building occupied by T. Strangi as store and residence in Mississippi City. They then went something over one hundred feet on defendant's premises and found this stuff they called wine and beer, and there is no evidence that it was intoxicating. They then went to his garage, seventy-five feet from his house and one hundred feet from his storehouse, and found what one of them called "shinny" and another called "wine." There is no proof that this was intoxicating.

Of course in the Tucker case, 90 So. 845, they had to have a search warrant particularly describing the place and premises to be searched. The only thing specially designated in this search warrant was: "A certain room in a building occupied by T. Strangi as store and residence." The premises where the officers claimed to have found this concoction of beer and wine, and which is not proven to be intoxicating, was at least one hundred feet from the building occupied by Strangi as store and residence. The search warrant nowhere gives them authority to run over these premises. Where they claimed to have found the shinny and wine is altogether a separate building, about seventy-five feet from his house and one hundred feet from his storehouse. So they had no authority to search his garage.

In 1 Archbold on Criminal Practice and Pleading, page 131, it is said: "The proceedings upon search warrants should be strictly legal, for there is not a description of process known to the law, the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effects."

In Giles v. United States, an appeal to the circuit court of appeals of the first circuit, decided October 28, 1922, reported in 284 Federal Reporter, page 208, in Advance Sheets of December 28, 1922, the court strictly construes everything pertaining to a search warrant.

We see that the building occupied by T. Strangi as store and dwelling house is the only thing that was authorized to be searched, yet the officers searched this and found nothing; but searched his garage, seventy-five feet away, and found what one of them called a bottle of wine and shinny. They were not authorized to do this under the search warrant. They then searched in the high weeds on his premises, one hundred feet, or in that neighborhood, from the building occupied by him as storehouse and residence, and found what was termed "beer and wine." They were not authorized to do this. So they were trespassers as to this and it should not be admitted in evidence. And this was done over the vigorous objection of defendant. Time and time again he objected. And besides there was no evidence that any of the liquor was intoxicating, and the peremptory instruction should have been given.

H. T. Odom and S. C. Broom, Assistant Attorneys-General, for the state.

It is certainly the law in Mississippi that testimony based on knowledge acquired in searching the premises without search warrant in violation of the constitution is inadmissible. Tucker v. State, 90 So. 845; William v. State, 129 Miss. 469; Miller et al. v. State, 129 Miss. 774; Taylor v. State, 129 Miss. 815.

We must, therefore, consider in the present case whether or not search warrant authorizing an officer to search a certain room in a building occupied by T. Strangi as store and residence, etc., would authorize him to search the premises within an enclosure where the residence and store is located; and whether or not liquors found outside of the room of the store, or residence, could be used as evidence against him.

As I understand the Tucker case, supra, the reason for the rule that liquors seized without a search warrant cannot be used as evidence to convict the party who had them in his possession, is because it is in effect, to make one testify against one's self. Another reason is because of the great humiliation attendant upon the search of one's premises and private effects. Now, applying that rule, as I understand it to be in the Tucker case, we observe that the officers were clothed with proper authority. The condition precedent had been performed; they had a search warrant based upon a valid affidavit. Certainly under this instrument they had a right to search the residence and the store. Therefore, notwithstanding the fact that the intoxicating liquors were not found within the residence, nor within the store, appellant has nevertheless suffered whatever humiliation may be necessarily attendant upon a search and could have no redress. In other words, he cannot complain of the search warrant itself. The appellant can only contend that the liquor itself cannot be introduced in evidence because it was not found in the house or the store.

We are willing to concede, for the sake of argument, that a broader term could have been used to describe the place to be searched; and perhaps by so doing we could have avoided the objection herein made by appellant. But if some such word as premises would not be all-embracing and sufficient to enable one under a search warrant to search the house and outhouses and surrounding grounds, then I fear that many controversies of a like nature will arise in the future. Surely it is not required that an officer should not be gifted with the powers of a Sir Conan Doyle, and be able to state positively in his affidavit for a search warrant, the identical pig-pen, or storm-cellar, or bunch of weeds, or any other particular place on the premises where the liquor is located.

"Authority to search a house will justify the search of a shop on the same premises if the goods under search are such as might reasonably be found in such shop." 24 R. C. L., sec. 16. "Search and Seizure," page 714. "Authority to search a house will justify the search of a shop on the same premises if the goods under search are such as might reasonably be found in such shop." See Note Am. St. Rep., Vol. 101, page 332, citing Dwinnell v. Boyington, 3 Allen 310 (Massachusetts case).

We submit that the above authorities, and the rule laid down therein, fits the present case like a glove, and that the real test in such cases is whether or not it is unreasonable search and seizure within the meaning of the law.

"It is believed that no search warrant is unreasonable in the legal sense when it is for a thing obnoxious to the law, and for a person and thing particularly described, and is issued on oath of probable cause." 24 R. C. L., sec. 19, page 716. See Santo v. State, 2 Iowa 165, 63 Am. Dec. 487. "An unreasonable search is an examination or inspection without authority of law of one's premises or property with a view to discovery of stolen, contraband, or illicit property, or for some evidence of guilt to be used in the prosecution of a criminal action." 24 R. C. L., sec. 22, page 717.

From the above authorities I think it will be seen that it was not an unreasonable search and seizure on the part of the officers when armed with a search warrant authorizing the search of a room in a residence, if while there they found liquor in the garage, or in the weeds on the premises.

Mize & Mize for appellant in reply.

The affidavit in the instant case shows that it was made under the statute, as the affidavit, among other things, says that: "This day, B. F. Duckworth personally came and appeared before me, . . . and makes oath that he has reason to believe, and does believe that vinous, malt, alcoholic, intoxicating liquors, etc., are being kept and offered for sale, etc.," and prays for a search warrant.

So that the sufficiency of this search warrant, or its insufficiency, will bring up the construction of section 23 of the Constitution, which provides: "The people shall be secure in their persons, houses and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized."

We will state our position under the following heads: 1. If there is a conflict between the constitutional provision and the statutory provision, so that they cannot be harmonized and made to mean the same thing, then the constitutional provision must live and the statutory provision must disappear. 2. That the term "probable cause" as used in the Constitution means "a belief honestly entertained and derived from...