Wells v. State

• Citation: 100 So. 674,135 Miss. 764
• Decision Date: 09 June 1924
• Docket Number: 23690
• Court: United States State Supreme Court of Mississippi
• Parties: WELLS v. STATE. [*]

100 So. 674

135 Miss. 764

WELLS v. STATE. ^[*]

No. 23690

Supreme Court of Mississippi

June 9, 1924

Division B

CRIMINAL LAW. Affidavit and search warrant must be produced on demand or loss explained before evidence obtained by unlawful search admissible.

In a criminal prosecution, where evidence obtained by a search of the premises of the accused is offered and objected to, and a demand made that the affidavit and warrant for search be produced before evidence is received, the affidavit and warrant must be produced or its loss proven, or proof of a waiver at the time of the search be shown, before the evidence obtained by the search is admissible. Cuevas v City of Gulfport (Miss.), 99 So. 503, cited.

HON. D M. GRAHAM, Judge.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Mary Wells was convicted of the unlawful possession of intoxicating liquor, and she appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Mize & Mize, for appellant.

The court erred in permitting the witnesses Murphy, Byrd and Fairley to testify as to what they found in the search of the premises for the reason that there was no search warrant produced nor its absence accounted for so as to permit secondary evidence.

The evidence shows that the search warrant was either at the police station or at the circuit court, and the state made no effort to locate it or to make any search for it whatever, but was permitted, over the repeated objections of appellant, to show its contents and to show that it described Mary Wells' premises and then to testify what they found on the search.

It is so clearly established that a written instrument is the best evidence of its contents, and that, before its contents can be proven otherwise, its absence must be accounted for by showing that a search had been made of the places or persons where it was usually kept or required to be kept, that it needs no citation of authority. The evidence was clearly inadmissible under the Tucker case and other cases since decided.

E. C. Sharp, Assistant Attorney-General, for the state.

We have been unable to find any opinions by this court upon a similar statement of facts, but in Nelson Harris v. The State, No. 23435 on the docket of this court, recently decided, but in which no opinion was rendered, we find an identical statement of facts to exist. The record in the Harris case discloses the fact that objection was made to the introduction of testimony before the affidavit and search warrant were produced.

In the present case, the testimony is uncontradicted that a copy of a warrant had been served upon appellant and she was therefore, in a position to know whether or not it was regular on its face, and there is nothing in the record to indicate that the affidavit and search warrant were not...