West v. State, 37712
| Decision Date | 04 December 1950 |
| Docket Number | No. 37712,37712 |
| Citation | 49 So.2d 271 |
| Parties | WEST v. STATE. . Division B |
| Court | Mississippi Supreme Court |
Earle L. Wingo, Hattiesburg, for appellant.
J. P. Coleman, Atty. Gen., and Joe T. Patterson, Asst. Atty. Gen., for appellee.
This appeal is from a conviction for possession of an illicit still.
The first assignment is that the affidavit upon which a warrant was issued to search the premises of appellant did not describe affiant as a credible person. The general statute, Code 1942, Section 2604, contains no such requirement. Section 2614, dealing with manufacture of intoxicating liquors, uses the following language, 'Upon the affidavit of any credible person', etc. We have held, Turfitt v. State, Miss., 42 So.2d 737, that although the affidavit would better contain such recital, it is not prerequisite. Serio v. City of Brookhaven, 208 Miss. 620, 45 So.2d 257; Harper v. State, Miss., 47 So.2d 854. The rationale of these cases is that the attestation by the affiant of his own credibility is not as appropriate as its certification by the officer, and that issuance of the writ is presumably a finding of credibility.
It is next assigned for error that the indictment is defective in charging that the appellant had in his possession 'a still and the integral parts thereof.' Putting aside the effect of a failure to demur thereto, it is enough to say that there is no duplicity in charging the possession of the whole and of the integral parts, for the whole includes its parts. The proof showed a complete operating still. A different question would have been presented had the allegation been in the disjunctive. Black v. State, 199 Miss. 147, 24 So.2d 117.
The last assignment urges a failure to prove the date of the crime, a contention which eyes the possibility of the intervention of the statute of limitation. The indictment charges the crime as of November 18, 1949, which, pursuant to customary procedure in cases where time is not of the essence of the offense, is fixed as the date of the indictment. The testimony showed that only one search warrant was issued against appellant, and that it and the search were 'last November'. Trial was had in January 1950. This was sufficient.
Affirmed.
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...v. State, 128 Miss. 575, 91 So. 277; State v. Clarke, 97 Miss. 806, 52 So. 691; Coleman v. State, 94 Miss. 860, 48 So. 181, and West v. State, Miss., 49 So.2d 271. 237 Miss. at 623-624, 115 So.2d at The court did not err on this ground. The appellant moved that the State be required to elec......
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Wolf v. State, 46988
...unrelated or not incidental to the sale, or had been upon another occasion, the prosecution would not have been barred. In West v. State, 49 So.2d 271 (Miss.1950) the indictment charged that the defendant had in his possession 'a still and the integral parts thereof.' In deciding that the i......
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Lenoir v. State, 41331
...v. State, 128 Miss. 575, 91 So. 777; State v. Clark, 97 Miss. 806, 52 So. 691; Coleman v. State, 94 Miss. 860, 48 So. 181, and West v. State, Miss., 49 So.2d 271. There is no repugnancy in charging the alternatives in the conjunctive under Code Section 2087. We think the statute denounces o......
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