Wood v. State, No. 48777

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: RODGERS; GILLESPIE
• Citation: 322 So.2d 462
• Docket Number: No. 48777
• Decision Date: 03 November 1975
• Parties: Robert WOOD v. STATE of Mississippi.

Page 462

322 So.2d 462 Robert WOOD
v.
STATE of Mississippi. No. 48777. Supreme Court of Mississippi. Nov. 3, 1975.
Rehearing Denied Dec. 8, 1975.

Page 463

Cunningham & Smith, John A. Ferrell, Booneville, for appellant.

A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for appellee.

Before RODGERS, PATTERSON, and SUGG, JJ.

RODGERS, Presiding Justice.

This case came to this Court from the Circuit Court of Lee County, Mississippi. The appellant Robert Wood has appealed from a judgment of conviction and sentence on charge of having in his possession amphetamine, a controlled drug under the Uniform Controlled Substances Act of 1971.

The state offered testimony to show that an employed informer took a capsule containing amphetamine to the deputy sheriff a few weeks before December 28, 1973, and advised him that the capsule had been supplied to him by the appellant. On December 28, the informer advised the officers that he had seen a number of red and black capsules in a bag that day in appellant's apartment; whereupon, the deputy sheriff obtained a search warrant from a justice of the peace based upon the information received from the informer who had previously given the officers information that had led to discovery of crime in that county.

The officers went to the appellant's apartment and waited until he arrived. They then served a copy of the search warrant upon the defendant Robert Wood. The officers then proceeded to search the apartment. They found certain capsules of drugs in the apartment which appeared to be similar to the capsule previously tested. The drugs were seized, and the appellant arrested. An examination of the drugs by the authorities at the Mississippi State Crime Laboratory established that the capsules contained amphetamine and others contained another drug, methaqualone.

The appellant appealed from his conviction and sentence and now contends that he did not receive a fair trial in the circuit court for the following reasons:

(1) The trial court erroneously permitted the introduction of the search warrant and its supporting affidavit secured for the purpose of searching his apartment, and erroneously permitted the introduction of the articles found in his apartment.

(a) The search warrant was not served on the defendant, appellant here.

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(b) The search began as an illegal search by an informer.

(2) The trial court erred in not requiring the state to reveal the identity of the real informer. Moreover, it is said that the trial court should have directed a verdict in favor of the appellant, because the state did not prove the appellant guilty beyond a reasonable doubt.

(3) The state erroneously obtained a 'constructive possession' instruction.

We have read the record and the cases cited by the attorneys in their briefs, and we have reached the conclusion that there is no reversible error shown in the record. We, therefore, affirm the judgment of the trial court for the following reasons.

The appellant contends that the search of the appellant's apartment was an illegal search, and that the contraband found therein was illegally seized, because it is said that the appellant, the occupant of the apartment, was present and was not served with a copy of the search warrant authorizing the search. In support of this contention, the appellant points out that our new law with reference to search warrants issued under the authority of the Uniform Controlled Substances Law of 1971 specifically requires that the officer shall deliver a copy of the warrant to the occupant. The pertinent part of Mississippi Code Annotated Section 41-29-157 (Supp.1974) is in the following language:

'(3) A warrant issued pursuant to this section must be executed and returned within ten (10) days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuant to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one (1) credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant.'

The appellant cites the case of Adams v. State, 202 Miss. 68, 30 So.2d 593 (1947), in which the testimony was to the effect that the officer serving the search warrant testified that he never served the search warrant on the defendant Minnie Adams, although she was present when the search was made. The officer 'merely laid it on a table in one of the rooms.' 202 Miss. at 73, 30 So.2d at 595.

In the case now before the Court, the officer testified that he gave the defendant a copy of the search warrant, and, although there is testimony from the defendant that he was not served with a copy of the search warrant and the defendant's attorney requested a copy of the search warrant from the officer, we think this issue was a question for the trial judge to determine. Unless a trial judge has abused his judicial discretion in allowing a search warrant to be introduced, as shown by the great weight of the testimony, we will not reverse the judgment merely because there is a conflict in the testimony as to whether or not a copy was delivered to the defendant.

The defendant also objected to the introduction of the search warrant because it is said that the search of appellant's apartment was begun by a paid agent of the officers prior to the issuance of the search warrant. The testimony shows that a paid agent of the officers gave the officers a capsule which proved to be amphetamine and informed them that he had obtained the capsule from Robert Wood, the appellant.

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The informer later informed the officers that he had seen a number of red and black capsules in the appellant's apartment on the day the search warrant was issued (December 28, 1973).

The appellant bases this argument upon the testimony of the...