Opinion
No. 29092.
December 8, 1930.
1. CRIMINAL LAW.
Finding of guilty, based on conflicting evidence, will not be disturbed on appeal.
2. INTOXICATING LIQUORS. Words "affiant believes and does believe" are not necessary to validity of liquor search warrant, where affidavit and warrant charged absolute knowledge of facts, and were not based on belief.
Affidavit and search warrant did not contain words "affiant has good reason to believe and does believe," etc., but charged as absolute fact that, when search warrant was issued, affiant knew of his own knowledge that liquor was being kept for sale and sold.
APPEAL from circuit court of Alcorn county. HON.C.P. LONG, Judge.
G.C. Moreland, of Corinth, for appellant.
The court below erred in overruling the objection to the introduction of the affidavit and search warrant for the reason neither the affidavit nor the search warrant stated that Mr. Young, the affiant, had reason to believe and did believe that intoxicating liquor was being kept, etc.
Turner v. State, 133 Miss. 738; State v. Watson, 133 Miss. 796; Porter v. State, 135 Miss. 789; Morrison v. State, 140 Miss. 221; Tucker v. State, 128 Miss. 211; Hem. Code 1927, sec. 2238.
Edwin R. Holmes, Jr., Assistant Attorney-General, for the state.
The affidavit sets forth the facts tending to establish the grounds of the affiant's application for the search warrant and we submit that the search warrant, which was duly and properly issued by the United States Commissioner, was issued because the commissioner was satisfied of the existence of the grounds stated in the application.
The fact that the commissioner is satisfied of the existence of the grounds for issuing the search warrant may be presumed from the facts of the issuance of the warrant.
Tucker v. U.S., 299 Fed. 235; U.S. v. Caplan, 286 Fed. 963.
The question was one for the jury and as the evidence was conflicting, this court will not disturb the jury's finding.
City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; Borders v. State, 138 Miss. 788, 104 So. 145; Lofton v. State, 146 Miss. 237, 111 So. 303; Cox v. State, 146 Miss. 685, 112 So. 479.
Appellant was convicted in the court below on an indictment charging her with the unlawful possession of intoxicating liquor, and sentenced to pay a fine of two hundred dollars and to confinement in jail for thirty days. From this conviction and sentence, she appeals here.
1. On the contention of appellant that she was entitled to a peremptory instruction on the question of her possession of whisky, found near the house she occupied, we think the evidence was conflicting as to whether she had possession of it, and the whole record makes it peculiarly a question for the jury. Where there is conflict in the evidence, this court will not disturb the jury's finding.
2. The appellant contends that the search warrant offered in evidence in this case, together with the evidence disclosed by the search was unlawful; and, the search being unlawful, the evidence, therefore, obtained was incompetent for the reason that the affidavit and search warrant did not contain the words, "affiant has good reason to believe and does believe," etc. The answer is that the affidavit and search warrant in question charged, as an absolute fact, that, when the search warrant was issued, the affiant knew of his own knowledge that liquor was being kept for sale in the dwelling house and outhouses on the premises of Mrs. Josephine Kelly and sold. The words "believes and does believe" are not necessary where the party making the affidavit charges therein his absolute knowledge of the facts instead of their being based upon belief. The charge that he knew the facts to exist is all-embracing, and necessarily includes the words "has good reason to believe and does believe." We are of the opinion that there is no reversible error in this case.