Turner v. State

• Decision Date: 17 December 1923
• Docket Number: 23649
• Citation: Turner v. State, 133 Miss. 738, 98 So. 240 (Miss. 1923)
• Court: Mississippi Supreme Court
• Parties: TURNER v. STATE

98 So. 240

133 Miss. 738

TURNER v. STATE

No. 23649

Supreme Court of Mississippi

December 17, 1923

(In Banc.) January 1, 1920

INTOXICATING LIQUORS. Affidavit for search warrant, not stating belief as to violation, held void.

Section 1749, Code 1906 (section 2088, Hemingway's Code) provides for the issuance of a search warrant for the enforcement of the statutes against the unlawful keeping and sale of intoxicating liquors, "upon the affidavit of any credible person that he has reason to believe and does believe, " etc. An affidavit was made for a search warrant, otherwise complying with said statute, but leaving out the phrase "does believe." Held: Laws authorizing searches and seizures are to be strictly construed against the state, and that the defect in said affidavit is not formal but substantial, and said affidavit is void.

SMITH C. J., dissenting.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS Judge.

Anderson Turner was convicted of unlawfully manufacturing intoxicating liquor, and he appeals. Reversed and remanded.

Reversed and remanded.

Jones & Womack, for appellant.

The affidavit instigating the search and seizure was made by the deputy sheriff whom the justice of the peace adjudges as a credible person, that liquors are sold, given away, etc., as authorized by section 2088 of Hemingway's Code, and a warrant is issued thereon, but neither the affidavit, or the warrant, follow the statute, and no evidence is disclosed that bears out the affidavit of the deputy sheriff in any particular. The justice issues a search warrant which does not require the sheriff or his deputy to do and perform the things required by the act under which the warrant is issued, and the deputy does not undertake to do the things required by law for him to do in said section. In the trial of this cause he does not produce any of the articles he has judged were sufficient to produce liquor by distillation, and the jury is called upon to take the opinion and judgment of the officer unsupported by the devices and materials he claims to have seized, and all of this testimony the defendant objected to.

There was no proof introduced, outside of the confession that any liquor was made, and none that it was made in Humphreys county, outside of the confession. The affidavit, setting forth things to be seized, which were not seized, and the warrant authorizing the seizure of things not seized is equivalent to no description whatever, and no evidence can be introduced of a seizure not particularly described, and it is further directed to the attention of this court that the warrant does not authorize the seizure of any person, but only of certain articles, none of which were found.

It is said in the case of Giles v. United States, 284 F. 208: "That the great weight of authority is that such a warrant shall be specific and complete within itself, and the officer executing and serving it should not be left to ascertain and judge of the requirements of law."

The testimony of both officers discloses that the search of the premises was not consented to, and it is held in case of Tucker v. State, 90 So. 845, that a blank affidavit and warrant amount to nothing, nor, from the same reasoning would one which detailed a description of property to be searched for, and none of which was found, be a sufficient warrant for the seizure of other effects.

It will be contended that even though the officers were not authorized to make the search and seizure, yet the statements of the defendant are confessions of guilt, but this court has held repeatedly that the corpus delicti must be proven aliunde a confession. Williams v. State, 92 So. 584; Miller v. State, 93 So. 2; Butler v. State, 93 So. 3.

All laws authorizing searches and seizures must be strictly construed. 25 Am. and Eng. Encyc. Law (2 Ed.), 151, 152; J. Livelar v. State, 98 Miss. 330, 53 So. 681.

The warrant issued for the search in this case was based upon an affidavit which, though charging that affiant had reason to believe, does not allege a belief that intoxicating liquors were being kept, etc., on the premises, as required by law, and the statute under which the search was endeavored to be made, and the warrant issued. The affidavit is therefore void, and the warrant issued thereon is also void, and any evidence procured under it should have been excluded upon the exception thereto of the defendant, and the court erred in admitting this testimony over such timely objection. In all the authorities I have been able to find upon the subject it is required that probable cause be shown before a warrant shall issue, and this must be based upon an affidavit that the person making the affidavit has "reason to believe, and does believe" and the statute authorizing the issuance of this very particular warrant requires that the affiant believe and allege this belief under oath.

S. C. Broom, Assistant Attorney-General, for the state.

The theory of the defense is, first, that the affidavit for search warrant, and the search warrant do not conform to the requirements of section 2088 of Hemingway's Code with reference to search warrants for intoxicating liquor, and that said search was, therefore, an unreasonable search within the meaning of section 23 of the Constitution of the state of Mississippi, and, therefore, under the rule as laid down in the case of Tucker v. State, 90 So. 845, that any evidence obtained by means of the unlawful search is not admissible on the prosecution of the case.

An examination of the affidavit for search warrant and of the search warrant issued on said affidavit will disclose a substantial compliance with the requirements of section 2088 of Hemingway's Code.

It will be observed that since the enactment of section 2088 of Hemingway's Code, intoxicating liquor, stills, and appliances used in the manufacture of intoxicating liquor have been declared to be contraband, in which no property right exists.

Therefore, in construing section 2088 of Hemingway's Code, with reference to search and seizure of intoxicating liquor or appliances used in the manufacture of intoxicating liquor, it shall be construed in accordance with subsequent progressive legislation with reference to the subject. It should be borne in mind that when this statute was enacted, under some circumstances intoxicating liquor, stills and appliances, etc., were personal property, hence the provision in said section requiring that the writ should be served on the owner or claimant in possession of such liquor, returnable not earlier than five days.

It is contended that there is no proof...