Opinion
No. 35465.
April 10, 1944.
1. INTOXICATING LIQUORS.
Evidence authorized conviction of unlawful possession of intoxicating liquor, as against defense that defendant was using whisky for medicinal purposes under prescription of a physician (Code 1942, secs. 2634-2638).
2. CRIMINAL LAW.
An affidavit is a prerequisite to prosecution in justice court for a misdemeanor, and is foundation of jurisdiction of the justice.
3. CRIMINAL LAW.
That sheriff secured an affidavit for a search warrant from justice of the peace and, upon finding whisky in defendant's home, arrested defendant and placed her under bond to appear before the justice, did not establish that proceedings had been instituted in a justice court, so as to preclude circuit court from assuming jurisdiction over prosecution for unlawful possession of intoxicating liquor, where no charging affidavit had been made before the justice (Code 1942, secs. 2634-2638).
APPEAL from the circuit court of Wayne county, HON. JESSE H. GRAHAM, Judge.
John Sharp Butler, of Quitman, for appellant.
Considering the evidence which was undisputed, this was an unreasonable search, the warrant was issued without probable cause, and the evidence obtained thereby was inadmissible and should have been suppressed.
Constitution of 1890, Sec. 23.
Judge P.Q. McIlwain, justice of the peace, District 2, Wayne County, Mississippi, has the original jurisdiction of this case to the exclusion of the circuit court of Wayne County. The cause was begun by search warrant issued by Judge McIlwain on October 10, 1942, returnable before his court October 23, 1942, and an appearance bond of defendant to appear before Judge McIlwain's court October 23, 1942, on charge of possession of intoxicating liquor, was executed. The justice of the peace court was bound to retain jurisdiction of this cause and dispose of the case according to law.
Code of 1930, Sec. 2098.
The indictment of defendant by the grand jury was void. The grand jury was without authority at law to indict defendant. The justice of the peace court of District 2, Wayne County, Mississippi, has concurrent jurisdiction with the circuit court in cases involving persons charged with possession of intoxicating liquor; and this justice of the peace court had original and exclusive jurisdiction in this case and was required by statute to dispose of the case according to law.
Code of 1930, Sec. 2098.
There was no criminal intent in this case by defendant, either actual or constructive. The attending physician prescribed whiskey, a stimulant, as necessary medicine in the treatment of defendant in her illness. Considering the evidence as a whole, the state failed to make out its case of possession as contemplated by the law against the defendant.
City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; Holley v. State, 144 Miss. 726, 111 So. 139; Anderson v. State, 132 Miss. 147, 96 So. 163.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The judicial finding of the officer issuing a search warrant of the existence of probable cause therefor is conclusive as between the state and the defendant and cannot be inquired into and does not violate Section 23 of the Constitution of 1890.
Armstrong v. State, 195 Miss. 300, 15 So.2d 438.
In the second assignment, appellant contends that the justice of the peace of District 2, Wayne County, Mississippi, had original jurisdiction of this cause to the exclusion of the circuit court of Wayne County; and in the third assignment contends that the indictment was void for the reason that the justice of the peace had exclusive jurisdiction in this cause. Under Section 2097, Code of 1930, the justices of the peace have jurisdiction concurrent with the circuit court of the county of all crimes where the punishment prescribed does not exceed fine and imprisonment in the county jail.
In this case no affidavit was filed with the justice of the peace; therefore, the justice court did not have jurisdiction.
Bramlette v. State, 193 Miss. 24, 8 So.2d 234; Coulter v. State, 75 Miss. 356, 22 So. 872; Bigham v. State, 59 Miss. 529; Code of 1930, Sec. 2098; 22 C.J.S. 457, Criminal Law, Sec. 303.
Counsel for appellant contends that the appellant should not have been convicted in this case, due to the peculiar circumstances in that she was sick and that the doctor had advised a stimulant, whiskey or wine. The possession of intoxicating liquor, whiskey, is unlawful and the jury's verdict was amply supported by the evidence and I submit that the judgment of the lower court should be affirmed.
Appellant was convicted of the unlawful possession of intoxicating liquor. Her main defense is she was using the whiskey for medicinal purposes under prescription of a doctor. That question arises under these circumstances: Between the 5th and 15th of October appellant was seriously ill with blood poison. Her physician administered a sulfa drug to counteract the poison. The drug did that but appellant was left in a weakened condition. Her doctor told those attending her she needed some whiskey, or wine, or other stimulant. No written prescription therefor was issued. On October 19th the sheriff, acting under proper warrant, searched the home of appellant and found therein, underneath the mattress on her bed, one partly used and three unopened half-pints of whiskey. Appellant did not deny the whiskey belonged to her and there is no explanation of when, how, or from whom, she obtained it. The deputy sheriff testified that appellant was present when the whiskey was found and appeared to be in normal physical health, but appellant testified she was then ill and very weak and that presence of the officers made her so nervous she had to take ammonia.
Sections 2634 to 2638, both inclusive, Vol. 2, Code of 1942, authorizes druggists to sell pure alcohol to practicing physicians upon their written prescriptions therefor, to which shall be attached a certificate of the physician "that the use thereof is necessary to alleviate or cure the illness or disease from which such patient is suffering," the quantity not to exceed one-half pint on each prescription, which must be filled on the day issued or the following day, all such prescriptions to be filed with and preserved by the circuit clerk of the county in which issued.
It is at once apparent that the facts of this case do not bring appellant within the protection of these statutes.
Appellant further says the circuit court, in which she was convicted and from which she appeals, had no jurisdiction of this case for the reason the proceeding had been instituted in a justice of the peace court and that court had jurisdiction. As to the proceeding before the justice of the peace, the record discloses, and discloses only, that on October 10, 1943, the sheriff made affidavit for, and the justice of the peace issued, a warrant to search the home of appellant, and that the sheriff made the search, found the whiskey, arrested appellant and placed "her under bond." The kind of bond is not shown but we may assume it was a bond to appear before the justice of the peace. It is not shown that any affidavit was made before the justice of the peace charging her with unlawful possession of intoxicants. No proceedings whatever are shown to have taken place before the justice of the peace after the issuance of the search warrant. Apparently none occurred, because appellant was tried in the circuit court on an indictment and not on appeal. Without such charging affidavit no case against appellant was pending before, or could be tried by, the justice of the peace. "The affidavit is a prerequisite to [the] prosecution for [a] misdemeanor. . . . The affidavit is the foundation of the jurisdiction of the justice of the peace . . . and the court has no jurisdiction without it." Bramlette v. State, 193 Miss. 24, 8 So.2d 234. The affidavit for the search warrant is not, and cannot be, a substitute for such charging affidavit. Powell v. State, 196 Miss. 331, 17 So.2d 524.
Affirmed.