Opinion
No. 30172.
March 6, 1933.
1. SEARCHES AND SEIZURES. Where affidavit and warrant to search defendant's premises were valid when issued, addition, to warrant only, of name of another alleged occupant of building did not, as to defendant, affect right to search.
Facts disclosed that policeman made affidavit in statutory form for warrant for search of dwelling house, outhouses, and premises at certain address used and occupied by defendant, and that justice of peace issued warrant for search of premises described in statutory form, but that after officers started to house, some one suggested that another person lived in house in separate apartment, and officer went to justice of peace and secured his permission to add name of the other person as occupant of house, but affidavit was not changed until day following search.
2. INTOXICATING LIQUORS.
Defendant's guilt of unlawfully possessing intoxicating liquor held for jury.
APPEAL from circuit court of Forrest county. HON.W.J. PACK, J.
Harry Buchanan, of Hattiesburg, for appellant.
The court erred in admitting the affidavit for search warrant, over the appellant's objection.
Following paragraph numbered "5" of Section 1977 of the Mississippi Code of 1930 the following material stipulations were prescribed by the Legislature of this state, to-wit: — . . . in the residence, outhouse, barns, stalls, smokehouses; crib, and in the field, yard and garden and woods near the residence of . . . These material and essential designations do not appear in the affidavit for search warrant introduced in the case at bar, nor is same, in any of its material aspects, in conformity with the form prescribed.
In view of the fact the Legislature saw fit to place certain matter in a statute, then it is mandatory that it be followed in such instances as the case at bar.
Turner v. State, 133 Miss. 738, 98 So. 240; State v. Watson, 133 Miss. 796, 98 So. 241; Porter v. State, 135 Miss. 789, 100 So. 377; Morrison v. State, 140 Miss. 221, 105 So. 497.
Section 1978 of the Mississippi Code of 1930 provides the form of search warrant to be used. The search warrant introduced in this case is more estranged to the form prescribed by statute than the affidavit, above mentioned and discussed.
At no time or place does the warrant or affidavit describe the "vehicle, receptacles, vessels and appliances" being searched for nor for what purpose they were sought.
It developed during the trial of this case that there was a variance in the affidavit for search warrant and the warrant at the time of the search and seizure, in that the name of Jess Easterling, one of the occupants of the house, had been placed in the search warrant and did not appear in the affidavit until the day following the search. The defendant promptly requested the trial court to exclude both the affidavit and warrant.
This court has held that a "John Doe" warrant is void. In other words, this court has held that the name of the person or persons, if known, in possession of the place or thing to be searched and seized must be designated.
Brewer v. State, 142 Miss. 100, 107 So. 376.
It follows that if the name, or person, is a material element and essential part of the affidavit and warrant, and there is a variance in the same at the time of the execution of the warrant, it is void and the evidence obtained thereby inadmissible.
Crosby v. State, 144 Miss. 401, 110 So. 122; Morton v. State, 136 Miss. 284, 101 So. 379; Deaton v. State, 137 Miss. 164, 102 So. 175; Grizzard v. State, 149 Miss. 455, 115 So. 555.
The issuance of a search warrant is a judicial act, based on the affidavit of a credible person that he has reason to believe and does believe a definite state of facts. The justice of the peace could no more consent to placing the name of Jess Easterling in the warrant, in the absence of an affidavit, than he could consent to a search without a warrant. The warrant was void, and not voidable.
Grizzard v. State, 149 Miss. 455, 115 So. 555; Jones v. State, 133 Miss. 801, 98 So. 342.
Herbert Nunnery, Assistant Attorney-General, for the state.
By referring to the affidavit, with reference to that part complained of by appellant, we find that the affidavit authorized the search of the "dwelling house, outhouse and premises, located at 912 W. Pine Street. This according to the authorities hereinafter cited is sufficient compliance with the statute.
Holston v. State, 137 So. 501; Mooney v. State, 135 So. 200.
It is unnecessary for the description to be technical and a search warrant authorizing a search of the dwelling house, outhouses, premises, etc., is sufficient.
Crabb v. State, 123 So. 851.
If the original affidavit and search warrant were sufficient, was appellant injured by the change made by the officer in the presence of the justice of the peace, and with his permission, by inserting the name of Jess Easterling? It appears to us that if it were error, or was without authority to insert the name of Jess Easterling, then the search warrant or the affidavit was not affected. Furthermore, we do not believe that the appellant can complain of this change because it did not affect him in any way, and the only one in our opinion that could complain of this, is Jess Easterling, who is not a party to this cause. If the justice of the peace, under all of the circumstances of this case, permitted or consented to the insertion of the name of Jess Easterling in the search warrant, and inasmuch at the search warrant was bona fide, this change would not materially alter search warrant and would not render same invalid.
The appellant, Clarence Walker, was convicted in the circuit court of Forrest county, on a charge of unlawfully having in his possession intoxicating liquor, and was sentenced to pay a fine of two hundred fifty dollars, and serve ninety days in jail; and from this conviction and sentence he prosecuted this appeal.
D.E. Edwards, a policeman of the city of Hattiesburg, appeared before a justice of the peace and made an affidavit in statutory form for a warrant for the search of the "dwelling house, outhouses, and premises at house No. 912 West Pine street, used and occupied by Clarence Walker in said city, county, and state." Upon the filing of this affidavit, the justice of the peace issued a warrant for the search of the premises described in the affidavit; this warrant being also in statutory form. The following day the said Edwards, accompanied by other officers, started to the house described in said warrant, for the purpose of searching the house. Some one of the officers suggested that one Jess Easterling lived in the house, but in a separate apartment therein, and it was then decided that it would be necessary and desirable to have the name of the said Easterling entered on the face of the warrant; and thereupon the officers proceeded to the home of the justice of the peace and secured his permission to add the name of Easterling as an occupant of the house, which was done by the affiant Edwards, thus making the description of the premises read as follows: "Dwelling house, outhouses, and premises at house No. 912 West Pine street, used and occupied by Clarence Walker and Jess Easterling." At that time the affidavit was not available, being at the office of the justice of the peace, and it was not changed until the day following the search, when the name of Jess Easterling was added thereto to make it accord with the change in the warrant.
After the change in the said warrant, the officers proceeded to the house described therein, and, in the presence of appellant and his wife, searched his apartment and premises and discovered more than twenty-four gallons of whisky concealed in a closet under a stairway adjacent to the rooms occupied by appellant and his wife. The door to this closet was closed, and had an oil cooking stove sitting against it. When the officers started to remove this stove, the appellant's wife placed herself between them and the stove, and ordered them not to go into the closet. When she did that the appellant was standing eight or ten feet away, within hearing distance, but he said nothing and made no protest.
The affidavit and the search warrant, as originally issued, were in statutory form, and sufficiently described the premises to be searched, and the only objection to the warrant that merits any discussion is the contention that the addition thereto of the name of Jess Easterling, as an occupant of the house to be searched, constituted such a variance between the affidavit and warrant as to render the warrant invalid, and the search made thereunder unlawful, thereby rendering the evidence secured by the means of the search inadmissible. The affidavit and warrant were in all respects regular and valid when issued, and so far as the appellant, the alleged occupant of the building, was concerned, the addition of the name of another alleged occupant of the building did not destroy its validity or affect the right to search the premises described therein, and occupied by the appellant. If the apartment or premises of the said Easterling had been searched under this warrant, and the admissibility against him of evidence secured thereby were involved, a different question would be presented. But the name inserted in said warrant was mere surplusage in so far as the rights of the appellant were concerned, and the lawfulness of the search thereunder of his apartment and premises was in no way affected by said addition.
The appellant offered no evidence, and, upon the evidence offered by the state, the court below committed no error in refusing the peremptory instruction requested by him. The evidence supports the verdict, and none of the assignments present reversible error; consequently, the judgment of the court below will be affirmed.