Taylor v. State

• Decision Date: 22 December 1924
• Docket Number: 24212
• Citation: 102 So. 267,137 Miss. 217
• Court: Mississippi Supreme Court
• Parties: TAYLOR v. STATE. [*]

102 So. 267

137 Miss. 217

TAYLOR v. STATE. ^[*]

No. 24212

Supreme Court of Mississippi

December 22, 1924

(In Banc.)

1. INTOXICATING LIQUOBS. Search warrant after date fixed therein for execution and return becomes functus offlcio.

In a search warrant issued under the provisions of section 2088 Hemingway's Code, some date, within a reasonable time after the issuance of the warrant, must be fixed within which it is to be executed and returned, and after that date the warrant cannot be executed, but becomes functus officio.

2. CRIMINAL LAW. Searches and seizures. Evidence secured by execution of search warrant after return day inadmissible.

The execution of a search warrant after the return day thereof is illegal, and evidence secured by means of such search is inadmissible.

HON. R S. HALL, Judge.

APPEAL from circuit court of Perry county, HON. R. S. HALL, Judge.

Chester Taylor was convicted of the unlawful possession of intoxicating liquors, and he appeals. Reversed and remanded.

Reversed and remanded.

A. T L. Watkins, for appellant.

A valid affidavit is a prerequisite to a valid search warrant. The affidavit is absolutely void, not having in any manner complied with the law to obtain it, nor complied with the law after obtaining it. Section 23 of the Constitution. A writ not based on a valid affidavit is void, "Laws authorizing searches and seizures are to be strictly construed against the state." Turner v. State, 98 So. 240; State v. Watson, 98 So. 241; 54 So. 195; 50 So. 270; 23 Standard Cyc. of Procedure, 385; 150 U.S. 637; Rose v. State, 171 Ind. 663; 44 Vt. 208; Cheek v. State, 57 So. 109; Toole v. State, 54 So. 198. It was clearly held that a criminal charge in the alternative is void. 75 Miss. 24. All laws authorizing searches and seizures must be strictly construed. 25 Am. & Eng. Cyc. of Law (2 Ed.), 151-152; Owens v. State, 98 So. 240.

When a statute or section of the Constitution is expressed in general or limited terms, the lawmaker shall be intended to have meant what it has plainly expressed and consequently no room is left for construction. U. S. v. Fisher, 1 Cranch, 244; Spears v. State, 99 So. 361. If we were to admit that the officers, in this case had a valid search warrant, which we do not, then under sections 1447, 1448, Code of 1906, it was their duty to inform defendant of their mission and authority, and to be refused admittance before they might break or threaten to break into defendant's dwelling house, in the night. The behavior as testified to by state witnesses was in violation of law and an assault on defendant and his wife, and defendant was under no duty to submit. Ezell v. State, 68 So. 580, No. 4 & 5; Cobb v. State, 97 So. 779; Tarwater v. State, 75 So. 816.

The defendant being in unlawful custody, and so-called confessions were inadmissible and in violation of section 26 of our Constitution.

F. S. Harmon, Assistant Attorney-General, for the state.

Counsel for appellant in a lengthy brief indulges in a general discussion of the law of searches and seizures, citing Tucker v. State, and Owens v. State, and the cases controlled by these decisions. Counsel cried out against alleged grievous errors in the affidavit for the search warrant and the warrant itself, which he seems to think run directly contrary to the constitutional provisions. It is not necessary to enter into a long discussion of this point. The court will find the affidavit for search warrant on page 1 of the record, and the search warrant itself on page 2. Both follow the standard forms which have been in constant use in Mississippi and have been repeatedly before the court. All the requisites for a valid affidavit and search warrant are satisfied in the case at bar, as the court will find from a careful reading of same.

The only respect in which the warrant is at all irregular lies in the fact that it is made returnable on the 12th day of January, 1924--the same day on which it was issued. Counsel insists that under section 2088 of the Code, providing that the search warrant "shall be returnable at a time to be stated therein, not earlier than five days, and a copy of the writ shall be served on the owner or claimant person in possession of such liquors." it was fatal here to make this warrant returnable on the day on which it was issued. There is no merit in this contention. Bufkin v. State, 98 So. 452.

This completely disposes of this question, while the fact that the warrant itself was turned over to the defendant and read by him satisfies the statutory provision that a copy of the writ shall be served on the owner or person in possession.

OPINION

COOK, J.

The appellant, Chester Taylor, was tried and convicted in the circuit court of Perry county, on a charge of having liquor in his possession, and was sentenced to pay a fine of five hundred dollars and to serve a jail sentence of thirty days, and from this judgment he prosecuted this appeal.

The testimony upon which this conviction was based was secured by means of a search of appellant's home under a search warrant issued by a justice of the peace on January 12, 1924 and returnable the same day. The search was made four days after the return day of the warrant, under the authority of which the search was made. When the testimony as to this search, and the results thereof, was offered by the state,...