Sykes v. State

Decision Date09 June 1930
Docket Number28552
Citation128 So. 753,157 Miss. 600
CourtMississippi Supreme Court
PartiesSYKES v. STATE

Division B

1. INTOXICATING LIQUORS. Affidavit and search warrant described place to be searched for liquor with sufficient certainty and recited that trunk to be searched was in defendant's possession.

The affidavit and search warrant set out that intoxicating liquor was manufactured, possessed, sold, or kept for sale or given away at property room of certain hotel on ground floor on North' Fourth street, and was kept in a certain trunk used by a named person, and, although neither the word "possession" nor "possessed" is used in affidavit or search warrant, it was inconceivable that person could use a trunk and not have some sort of possession or control over it.

2. SEARCHES AND SEIZURES.

As between state and defendant, judicial finding of officer issuing search warrant of existence of probable cause is conclusive.

3. CRIMINAL LAW.

Evidence procured by state pursuant to search warrant, reciting existence of probable cause, if competent and relevant, is admissible.

4. SEARCHES AND SEIZURES.

Error in dating affidavit for search warrant one month before search warrant itself was dated did not invalidate search warrant issued on same day.

5. CRIMINAL LAW.

Corpus delicti must be proven by evidence aliunde defendant's confession.

6. CRIMINAL LAW.

On proof of corpus delicti, defendant's plea of guilty on former trial is admissible against him as confession of guilt, unless brought about by duress.

7. CRIMINAL LAW.

Defendant's plea of guilty to keep down publicity, and under belief that intoxicating liquor was his, and that he was only to pay fine, was not brought about by duress.

8. INTOXICATING LIQUORS.

Evidence in prosecution for possession of intoxicating liquor held for jury.

9. CRIMINAL LAW.

Judgment on conviction for possession of liquor, setting out verdict of jury finding defendant guilty as charged, was not invalid as failing to set out crime.

HON. J I. STURDIVANT, Judge.

APPEAL from circuit court of Lowndes county HON. J. I. STURDIVANT, Judge.

Jim Sykes was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed.

Affirmed.

Franklin, Easterling & Rosenthal, of Jackson, and W. L. Sims, of Columbus, for appellant.

Section 23 of the State Constitution is "intended to prevent such searches as are made through governmental agencies, and has no bearing on the unauthorized acts of private persons."

24 R. C. L. 704; Weeks v. United States, 232 U.S. 383, 58 L.Ed. 652; Hampton v. State, 96 So. 165.

A search warrant issued upon an affidavit which alleges that affiant has good reason to believe but fails to allege that affiant does believe is fatally defective.

Porter v. State, 135 Miss. 789, 100 So. 377; Morrison v. State, 105 So. 497.

The facts upon which an officer acts must be sufficient in law to constitute probable cause and this is a judicial question for the decision of the court.

McNutt v. State, 108 So. 721; Moore v. State, 138 Miss. 116, 103 So. 483; Loeb v. State, 98 So. 449.

The state attempted to prove ownership by the fact that a new lock was placed on the trunk by defendant, yet there was no witness who could testify that defendant placed the lock on the trunk, this was not sufficient.

Lambert v. State, 94 So. 162; Williams v. State, 98 So. 338; King v. State, 113 So. 173; Medlin v. State, 108 So. 177.

In order to sustain a verdict of guilty of the possession of liquor it is necessary that the evidence show that the property searched was owned or in the possession of the defendant, or under his control.

Lovern v. State (Miss.), 105 So. 759; Halleys v. State, 111 So. 139; Powers v. State, 86 So. 862; Stribling v. State, 86 So. 897; Medlin v. State, 108 So. 177; Parkinson v. State, 110 So. 513; Brazeale v. State, 133 Miss. 171, 97 So. 525; Harness v. State, 130 Miss. 673, 97 So. 65; Anderson v. State, 132 Miss. 147, 96 So. 163.

The affidavit is dated July 1, 1929, and the search warrant is dated August 1, 1929. Evidence was introduced to attempt to show that the date of the affidavit should have been August 1, and this may be correct. However, no attempt was made to amend the affidavit.

Taylor v. State, 102 So. 267.

The judgment did not, therefore, find the defendant guilty of the unlawful possession of intoxicating liquor, but simply found the defendant guilty of the possession of liquor.

Geo. T. Mitchell, Attorney-General and W. A. Shipman, Assistant Attorney-General, for the state.

The cases of Hampton v. State, 132 Miss. 154, 96 So. 166; Porter v. State, 135 Miss. 789, 100 So. 377; Morrison v. State, 140 Miss. 221, 105 So. 497; McNutt v. State, 143 Miss. 347, 108 So. 721; Moore v. State, 138 Miss. 116, 103 So. 483; Loeb v. State, 133 Miss. 883, 98 So. 449; are not in point, as the facts are different.

OPINION

Anderson, J.

The appellant, Jim Sykes, was convicted in the circuit court of Lowndes county of the unlawful possession of intoxicating liquor, and sentenced to pay a fine of five hundred dollars, and to thirty days' imprisonment; from that judgment he prosecutes this appeal.

The proof of the corpus delicti was acquired by means of the search of a trunk found in the property room of the Gilmer Hotel in Columbus.

The appellant assigns and argues the following grounds for the reversal of the judgment: That the affidavit for the search warrant, and the search warrant issued thereon, were illegal; that the issuance of the search warrant was not based on probable cause; that the evidence was insufficient to sustain the conviction; and that the judgment appealed from is void on its face, because it fails to set out the crime of which the appellant was convicted. The following is deemed a sufficient statement of the case to develop the questions for decision.

J. A. Morton, captain of police of the city of Columbus, made the affidavit for the search warrant before T. W. Harris, mayor of the city of Columbus, and ex officio justice of the peace of Lowndes county. The affidavit set out, in substance, that the affiant had reason to believe, and did believe, that intoxicating liquors were being manufactured, possessed, sold, or kept for sale, or given away, in violation of law, in the property room of the Gilmer Hotel on North Fourth street, and there kept in a trunk used by the appellant, in said city of Columbus, county of Lowndes. The affidavit prayed for the issuance of a search warrant to search the Gilmer Hotel property room and a certain trunk therein used by the appellant, Jim Sykes. The preamble to the search warrant followed literally the language of the affidavit. The command to the officer was in this language:

"Therefore we command you that with such aid as shall be needed, you do proceed in the day or night time, to enter by breaking if necessary to diligently search said property room of the Gilmer Hotel, and said trunk used by Jim Sykes, located on the ground floor of the Gilmer Hotel, on North Fourth street, said county and state."

"For said intoxicating liquors and such vessels and appliances as are used in connection therewith, making known to the said occupant thereof, if any your authority for so doing and if any such intoxicating liquors, vessels or appliances be found, that you seize same, and if practicable, bring them before me at my office on the 2nd day of August, 1929. And also arrest the said Jim Sykes, or such other party as may be in possession or control thereof, and have then and there this writ."

Appellant contends that the affidavit and search warrant were void because the place to be searched was not described with sufficient certainty, and for the further reason that they failed to recite that the trunk to be searched was in the possession of the appellant.

We are of opinion that neither of these contentions is well founded. "In the property room of the Gilmer Hotel, on the ground floor, on North Fourth street, kept in a certain trunk used by Jim Sykes," is sufficiently definite, both as to the thing to be searched, and its possession. It is true that neither the Word "possession," nor "possessed," is used in the affidavit or the search warrant. Instead, the word "used" is employed. It is inconceivable that a person could use a trunk and not have some sort of possession or control of it.

The contention that the search warrant was not based on probable cause is without merit, because, as between the state and a...

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    • March 15, 2006
    ...have sustained a magistrate's probable cause determination by excusing the error as merely clerical. For example, in Sykes v. State, 157 Miss. 600, 128 So. 753 (1930), which presented almost identical timing issues as the case at bar, the warrant was dated August 1, 1929 and the supporting ......
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