Webb v. State

• Decision Date: 25 November 1938
• Citation: 121 S.W.2d 550
• Parties: WEBB v. STATE.
• Court: Tennessee Supreme Court

121 S.W.2d 550

WEBB v. STATE.

Supreme Court of Tennessee.

November 25, 1938.

Error to Criminal Court, Knox County; E. G. Stooksbury, Judge.

Joe Webb was convicted of possessing intoxicating liquor, and he brings error.

Affirmed.

Hobart F. Atkins, of Knoxville, for plaintiff in error.

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

McKINNEY, Justice.

Plaintiff in error was convicted for possessing intoxicating liquor. The jury assessed a fine of $100, to which the trial court added a jail sentence of sixty days.

Several officers, armed with a warrant, searched the home of plaintiff in error and found 83½ gallons of moonshine liquor concealed underneath a loose plank of the floor. The plaintiff in error neither testified nor introduced any testimony in his own behalf, but relies solely and alone upon the invalidity of the search warrant.

The validity of the affidavit, upon which the search warrant was issued, is questioned in this court for the first time upon the ground tht it fails to state the time that the informant obtained his knowledge as to the possession of intoxicating liquors. This objection comes too late since the trial court cannot be put in error for a matter not called to his attention or made a ground of the motion for a new trial. It is a well-settled rule in this State that even in criminal cases errors to which no objections are made and exceptions taken in the court below cannot be raised for the first time and considered by this court. Armstrong v. State, 150 Tenn. 416, 265 S.W. 672; Harris v. State, 100 Tenn. 287, 45 S.W. 438; Moore v. State, 96 Tenn. 209, 33 S.W. 1046; Miller v. State, 80 Tenn. 223, 12 Lea 223; Garner v. State, 73 Tenn. 213, 5 Lea 213; Wallace v. State, 70 Tenn. 29, 2 Lea 29.

In the trial court, objection was made to the search warrant upon the ground that the officer procuring same did not divulge to the magistrate the name of his informant. This assignment may be disposed of by referring to our recent decision of Gallimore v. State, 173 Tenn. ___, 116 S.W.2d 1001.

Finally, it is contended that the warrant does not sufficiently describe the premises to be searched.

It appears that the affidavit and warrant were on the same sheet of paper and were physically attached. The affidavit recites: "That one, Joe Webb, has in his residence or dwelling house on the Andersonville Pike, about 12 miles from Knoxville on the left side of the pike, same being a three room boxed house, unpainted, in the 7th Civil District of Knox County, Tennessee, a quantity of intoxicating liquor," etc. It is conceded that this is an adequate description. This affidavit was followed by the warrant, which is as follows:

"State of Tennessee — Knox County

"To the Sheriff or Any Lawful Officer of Said County:

"The above affidavit having been made, subscribed and sworn to before me, you are hereby commanded to make immediate search of the dwelling house of said Joe Webb, on the Andersonville Pike, Knox County, Tennessee, for intoxicating liquor, and, or, for still or apparatus used in the manufacture of intoxicating liquors, and if you find such liquors and, or apparatus in his possession, you will arrest the offender and bring him, together with the evidence of his guilt before me and be dealt with as the law directs.

"Given under my hand and seal, at office in Knox County, Tennessee, on this the 21st day of November, 1936."

In O'Brien v. State, 158 Tenn. 400, 401, 402, 14 S.W.2d 51, it was said:

"It is a requirement that the search warrant sufficiently describe the premises to be searched. In this case the warrant directed the officer to search the dwelling house of James O'Brien on TeCoy Road in Ninth civil district, Knox county, Tenn. According to numerous authorities, such a description is held sufficient because it enables the officer to whom it is directed to locate with reasonable certainty the place to be searched. Olson v. Haggerty, 69 Wash. 48, 124 P. 145; Blackburn v. Commonwealth, 202 Ky. 751, 261 S.W. 277; Little v. Commonwealth, 205 Ky. 55, 265 S.W. 433; State v. Sheehan, 111 Me. 503 90 A. 120; McSherry v. Heimer, 132 Minn. 260, 156 N.W. 130.

"The affidavit is attached to the search warrant. A comprehensive description of the premises is set forth in the affidavit which is made a part of the warrant by reference. While the description in a detached affidavit cannot, without proper reference, be used to aid an insufficient description in the warrant (Cornelius, Search and Seizure, p. 331), a different rule prevails where the affidavit is attached to the warrant and the...