Whittington v. State

• Decision Date: 02 November 1953
• Docket Number: No. 38845,38845
• Citation: 67 So.2d 515,218 Miss. 631
• Parties: WHITTINGTON v. STATE.
• Court: Mississippi Supreme Court

Page 515

67 So.2d 515

218 Miss. 631

WHITTINGTON v. STATE.

No. 38845.

Supreme Court of Mississippi.

Nov. 2, 1953.

W. M. Broome, Crystal Springs, Arrington & Arrington, Lena Zama, Hazlehurst, for appellant.

J. P. Coleman, Atty. Gen., by John E. Stone, Asst. Atty. Gen., for appellee.

LEE, Justice.

Armon Whittington, from a conviction for the possession of intoxicating liquor in a justice of the peace court, appealed to the circuit court. There on a trial de novo, he was again convicted and sentenced to pay a fine of $300 and serve 90 days in jail. From the judgment entered, he appealed here.

Two alleged errors are argued, namely, (1) that the evidence was obtained as the result of an illegal search, and (2) that the circuit court had no jurisdiction.

The search warrant authorized a search of the residence, outhouses, etc., of Mrs. Mamie Whittington, in whom the title to the property was vested. She is the wife of the appellant, and they were living together on this property as their home. The liquor was found in a trap inside the garage, immediately behind the home. According to the evidence for the State, the appellant freely and voluntarily admitted, at the time of the search, that the liquor belonged to him. However, testifying for himself, he denied that it was his liquor and denied that he made an admission of possession to the officers.

The contention is that, since the warrant only authorized a search of the premises of his wife, it was invalid as to him. Among the cases cited are Harrell v. State, 140 Miss. 737, 106 So. 268, Sanders v. State, 141 Miss. 615, 106 So. 822, and Brewer v. State, 142 Miss. 100, 107 So. 376. However, those cases are distinguishable from the case under consideration inasmuch as they involved different principles. The search in the Brewer case, supra, was invalidated because it was a 'John Doe' warrant. The State contended, however, that such fact was immaterial inasmuch as the premises had actually been rented by Oliver Brewer, the husband of Olivia Brewer, the appellant; and for that reason, Olivia could not complain. But the Court said: 'We see no merit in this proposition, because the relation of husband and wife is such that they both possess the premises of the home when living there, regardless of which one may rent it or own it; * * *.'

The above language in the Brewer case, supra, forecast the decision of this Court in Cox v. State, 146 Miss. 685, 112 So. 479, 480, where the warrant authorized the search of a dwelling house 'occupied by one Alex Cox,' the husband of Susie Cox, the appellant. On appeal here, she contended that, since she was not named in the search warrant, the evidence obtained thereby was not admissible against her. This Court overruled her contention, and held that the search was lawful and that the evidence was admissible. That case is exactly like the case under consideration except that the appeal in the Cox case was by the wife, whereas here, it is by the husband. Consequently the appellant's first contention is untenable.

The second assignment arises out of these circumstances: The case was tried in the circuit court on November 15, 1952. No objection was made to the sufficiency of the transcript of the proceedings from the justice of the peace court either before or during the trial. Sentence was imposed four days later, on November 19. Thereafter on November 24, appellant filed his motion for a new trial, and then, for the first time, asserted that the court had no jurisdiction because the appeal proceedings were not certified to. There was a hearing before the trial judge in which the State offered evidence to show that the transcript, in its entirety, including a certificate from the justice of the peace, was filed with the clerk and was before the court during the trial. However, a search of the file and of the clerk's office failed to reveal the certificate. On the disputed issue, the trial judge found and held that the transcript was actually prepared by the justice of the peace and was filed and docketed by the clerk, and that once the court acquired jurisdiction, it could not be divested thereof by the loss or removal of the transcript.

The decision could be rested at this point on the ground that the decision of the judge, on the disputed issue of fact, was not manifestly wrong, and that, therefore, a proper transcript was before the court at the time of the trial. However, the Court deems it necessary to deal further with this question.

By Section 4370, Code 1892, Section 4936, Code 1906, as to judgments not to be reversed by the Supreme Court for certain errors, it was provided: 'A judgment in a criminal case shall not be reversed because the transcript of the record does not show a proper organization of the court below or of the grand jury, or where the court was held, or that the prisoner was present in court during the trial or any part of it, or that the court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict, or because of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their character, unless the record show that the errors complained of were made ground of special exception in that court.'

The above statute was construed in many subsequent decisions. It was uniformly held that a certified record of the proceedings, on appeal, was essential to vest jurisdiction in the circuit court, and that the lack of jurisdiction, because of an insufficient transcript, could be raised here for the first time. Some of the cases are: McPhail v. Blann, Miss., 47 So. 666; Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L.R.A.,N.S., 785; City of Greenwood v. Weaver, 96 Miss. 604, 50 So. 981; Allen v. State, 98 Miss. 192, 53 So. 498; Rodgers v. City of Hattiesburg, 99 Miss. 639, 55 So. 481; Salers v. State, 142 Miss. 88, 107 So. 375; and Jones v. State, 155 Miss. 364, 123 So. 882, 124 So. 374. These decisions were rendered prior to 1930.

Section 4936, Code 1906, was amended by Section 3403, Code 1930, now Section 1987, Code 1942, so as to append thereto the following: 'And no judgment in any...