Walker v. State
| Decision Date | 06 March 1933 |
| Docket Number | 30172 |
| Citation | 165 Miss. 130,146 So. 463 |
| Court | Mississippi Supreme Court |
| Parties | WALKER v. STATE |
1. SEARCHES AND SEIZURES. Where affidavit and warrant to search defendant's premises were valid when issued, addition, to warrant only, of name of another alleged occupant of building did not, as to defendant, affect right to search.
Facts disclosed that policeman made affidavit in statutory form for warrant for search of dwelling house, outhouses, and premises at certain address used and occupied by defendant, and that justice of peace issued warrant for search of premises described in statutory form, but that after officers started to house, some one suggested that another person lived in house in separate apartment, and officer went to justice of peace and secured his permission to add name of the other person as occupant of house, but affidavit was not changed until day following search.
2. INTOXICATING LIQUORS.
Defendant's guilt of unlawfully possessing intoxicating liquor Held for jury.
APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.
Clarence Walker was convicted of possessing intoxicating liquor, and he appeals. Affirmed.
Judgment affirmed.
Harry Buchanan, of Hattiesburg, for appellant.
The court erred in admitting the affidavit for search warrant over the appellant's objection.
Following paragraph numbered "5" of Section 1977 of the Mississippi Code of 1930 the following material stipulations were prescribed by the Legislature of this state, to-wit:-- . . in the residence, outhouse, barns, stalls, smokehouses; crib, and in the field, yard and garden and woods near the residence of . . . These material and essential designations do not appear in the affidavit for search warrant introduced in the case at bar, nor is same, in any of its material aspects, in conformity with the form prescribed.
In view of the fact the Legislature saw fit to place certain matter in a statute, then it is mandatory that it be followed in such instances as the case at bar.
Turner v. State, 133 Miss. 738, 98 So. 240; State v. Watson, 133 Miss. 796, 98 So. 241; Porter v. State, 135 Miss. 789, 100 So. 377; Morrison v. State, 140 Miss. 221, 105 So. 497.
Section 1978 of the Mississippi Code of 1930 provides the form of search warrant to be used. The search warrant introduced in this case is more estranged to the form prescribed by statute than the affidavit, above mentioned and discussed.
At no time or place does the warrant or affidavit describe the "vehicle, receptacles, vessels and appliances" being searched for nor for what purpose they were sought.
It developed during the trial of this case that there was a variance in the affidavit for search warrant and the warrant at the time of the search and seizure, in that the name of Jess Easterling, one of the occupants of the house, had been placed in the search warrant and did not appear in the affidavit until the day following the search. The defendant promptly requested the trial court to exclude both the affidavit and warrant.
This court has held that a "John Doe" warrant is void. In other words, this court has held that the name of the person or persons, if known, in possession of the place or thing to be searched and seized must be designated.
Brewer v. State, 142 Miss. 100, 107 So. 376.
It follows that if the name, or person, is a material element and essential part of the affidavit and warrant, and there is a variance in the same at the time of the execution of the warrant, it is void and the evidence obtained thereby inadmissible.
Crosby v. State, 144 Miss. 401, 110 So. 122; Morton v. State, 136 Miss. 284, 101 So. 379; Deaton v. State, 137 Miss. 164, 102 So. 175; Grizzard v. State, 149 Miss. 455, 115 So. 555.
The issuance of a search warrant is a judicial act, based on the affidavit of a credible person that he has reason to believe and does believe a definite state of facts. The justice of the peace could no more consent to placing the name of Jess Easterling in the warrant, in the absence of an affidavit, than he could consent to a search without a warrant. The warrant was void, and not voidable.
Grizzard v. State, 149 Miss. 455, 115 So. 555; Jones v. State, 133 Miss. 801, 98 So. 342.
Herbert Nunnery, Assistant Attorney-General, for the state.
By referring to the affidavit, with reference to that part complained of by appellant, we find that the affidavit authorized the search of the "dwelling house, outhouse and premises, located at 912 W. Pine Street. This according to the authorities hereinafter cited is sufficient compliance with the statute.
Holston v. State, 137 So. 501; Mooney v. State, 135 So. 200.
It is unnecessary for the description to be technical and a search warrant authorizing a search of the dwelling house, outhouses, premises, etc., is sufficient.
If the original affidavit and search warrant were sufficient, was appellant injured by the change made by the officer in the presence of the justice of the peace, and with his permission, by inserting the name of Jess Easterling? It appears to us that if it were error, or was without authority to insert the name of Jess Easterling, then the search warrant or the affidavit was not affected. Furthermo...
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