Stroud v. State

• Decision Date: 17 June 1929
• Docket Number: 1.
• Parties: STROUD v. STATE.
• Court: Tennessee Supreme Court

17 S.W.2d 899

159 Tenn. 263

STROUD v. STATE.

No. 1.

Supreme Court of Tennessee.

June 17, 1929

Error to Circuit Court, Lauderdale County; R. B. Baptist, Judge.

O. P Stroud was convicted of unlawfully transporting more than one gallon of whisky, and he brings error. Affirmed.

B. C Durham, Jr., of Ripley, and L. H. Graves, of Memphis, for plaintiff in error.

Nat Tipton, Atty. Gen., for the State.

SWIGGART J.

The plaintiff in error, O. P. Stroud, has appealed from a judgment rendered by the circuit court of Lauderdale county upon a conviction for unlawfully transporting more than one gallon of whisky, his punishment having been fixed at confinement in the penitentiary for a term of not less than one year and one day nor more than two years.

On the night of September 28, 1928, the sheriff of Lauderdale county, being in possession of a search warrant directing him to search the person of the plaintiff in error and the automobile in which he was riding, took a position on a county road to await the expected appearance of the plaintiff in error. The hour grew late and the sheriff started home. On the way, and before he reached the main highway, he saw the lights of an approaching automobile, which he took to be that of the plaintiff in error. The two cars were stopped by their respective drivers when they were about 75 feet apart. One of the officers, whose identity was known by the plaintiff in error, left the sheriff's car and started toward the car of the plaintiff in error, whereupon plaintiff in error pointed a rifle at him. The officer jumped to the side of the road, with the statement, "You won't shoot." The automobile of the plaintiff in error was then put in motion and, apparently in the effort to pass the lighter automobile of the sheriff, collided with it and was overturned. The automobile contained 50 gallons of whisky and when it was overturned the containers were visible and the odor of whisky was manifest. The plaintiff in error was taken in custody, and a search of the car confirmed what the appearance and odor of the containers had already made manifest as to their contents. No evidence was offered for the plaintiff in error, and the facts above detailed were developed in the testimony of the sheriff, who was the only witness.

The search warrant was issued upon an affidavit which recited, among other things, that the plaintiff in error had the reputation of a bootlegger in Lauderdale county, and had been convicted several times for transporting intoxicating liquor; that he had himself observed the plaintiff in error in Lauderdale county riding in an automobile on Friday nights for several months; and that he was informed by another person that the plaintiff in error habitually delivered intoxicating liquor in Lauderdale county on Friday nights. The affidavit then contained the statement that affiant's informant, believed by him to be reliable, had stated to the affiant that he had overheard the plaintiff in error agree to deliver intoxicating liquor in Lauderdale county by automobile on that night. The affidavit was made about 7 p. m., and the arrest was made some time after midnight.

A search warrant may be issued upon the faith of an affidavit made upon information and belief, provided it discloses "the nature and the source of the information so that the magistrate himself can determine whether probable cause exists for the issuance of the search warrant." Elliott v. State, 148 Tenn. 414, 256 S.W. 431. The statement of the affidavit that the informant was a reliable person, and claimed to have heard the plaintiff in error agree to deliver whisky on the night the search warrant was to be executed, justified the magistrate in determining that probable cause existed for the issuance of the warrant; and this averment alone was, in our opinion, sufficient to meet the attack on the affidavit.

It is said that the search warrant was unlawfully issued because the affidavit did not state that the plaintiff in error and his automobile were in Lauderdale county at the time the warrant was issued.

There is no evidence that the plaintiff in error was not in Lauderdale county at the time the warrant was issued. The affidavit recites that the plaintiff in error was in the possession of intoxicating liquor which "he is driving in Lauderdale County." The facts averred in the affidavit show that this statement was made upon information that the plaintiff in error had agreed to deliver whisky in the county on the night during which the affidavit was made. The warrant recites the magistrate's determination of probable cause for believing that the plaintiff in error was then in the...