Summary
In Jefferson v. State, 207 Miss. 576, 42 So.2d 772, a conviction of the unlawful possession of the integral parts of a still, the affidavit and the search warrant had been filed in the circuit court and were before the grand jury when the indictment was returned, but they had been misplaced, lost or stolen.
Summary of this case from Harvey v. StateOpinion
No. 37288.
November 14, 1949.
1. Criminal procedure — searches and seizures — search for stolen articles — parts of still found — evidence of latter competent.
When in the progress of a search of defendant's premises, under a valid search warrant authorizing the search for stolen property, the integral parts of a still were found, the evidence thereof is admissible in a prosecution for the unlawful possession of the integral parts of a still.
2. Criminal procedure — searches and seizures — lost affidavit and warrant — oral proof of contents.
When the affidavit for a search warrant and the warrant were lost, the prosecution was properly permitted, on proof of that fact, to show by parol the contents of the lost papers, the proof on the latter issue being full and specific in all substantial particulars.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, Judge.
J.M. Travis and J.A. McFarland, for appellant.
All of the testimony and evidence of the State disclosed that all of the evidence and testimony was secured by an affidavit for search warrant, the search warrant and return of the officer for alleged butchered beef stolen from Avery Lewis. The evidence does not show any affidavit for possession of dismantled still or integral parts thereof, nor does the record show any search warrant directed against the appellant, for the possession of the dismantled still or the integral parts thereof. We therefore contend that all the testimony and evidence in this case was incompetent, prejudicial testimony; that the conviction of the appellant was contrary to the constitution and laws of this state, and that he should and ought to be discharged.
Appellant contended that in Reynolds v. State, 136 Miss. 329, 101 So. 485, it was held that the seizure of a still under warrant to search premises for intoxicating liquors was unlawful, and appellant further contended that the requirement of the constitution which provides that search warrants shall particularly describe the thing to be seized, necessitates a description of the property to be seized, with such certainty as to identify it. The description must be so particular that the officer charged with the execution of the warrant will be left with no discretion respecting the property to be taken. 47 Am. Jur. Par. 37, p. 37. An officer executing a search warrant must comply strictly with the directions contained in the search warrant. If the warrant directs the seizure of a certain kind of property, a seizure of an entirely different kind constitutes him a trespasser.
There being no search warrant predicated upon the possession of the dismantled still and the integral parts of a still, found by the officer in this case and there being no search warrant or evidence adduced by the State, the seizure was unlawful, the evidence secured was unlawful, and should not have been admitted by the trial court below; and we contend that the appellant should be discharged in this case.
The court erred in admitting the State the right to introduce parol testimony to establish the contents of the affidavit for search warrant, the search warrant and return of officer for alleged stolen, butchered beef.
The jury having been retired it was made known to the court that the original affidavit for search warrant, the original search warrant and the return of the officer for alleged stolen, butchered beef had been lost, stolen or misplaced and could not be found and the State desired to qualify the instruments by oral testimony which the appellant objected to for the reason that under the law it had a remedy under Section 766 and 767 Code 1942 to substitute the original documents; that to comply with the law the papers would have to be substituted; or that all and singular, the allegations and things set out in the instruments would have to be proved after the proper predicate had been laid.
The testimony taken in the absence of the jury was insufficient. The proper predicate that the instruments had been lost was shown in the absence of the jury, but the contents in words and figures of the instruments were now shown. The description testified to was a void description, "SW 1/4 of SE 1/4 less 1 1/2 acres; 4 1/2 acres in SE Corner NW 1/4 of SE 1/4, South of road, Section 1, Township 2, Range 13 East, First District of Jasper County, Miss. The officer going upon the property could not locate it. The description of the property stolen and the value was not shown. Even the necessary and essential contents of the instruments were not shown either in the absence or the presence of the jury. Even if the originals had been produced upon the trial of this case, they would have been inadmissible as evidence because they were for the search for alleged butchered beef and not for a search of the premises of the appellant for the said dismantled still and its integral parts. We submit that all of the testimony and evidence in this case was inadmissible testimony and evidence and that the appellant was prejudiced thereby. Joe T. Patterson, Assistant Attorney General, for appellee.
This court held in Reynolds v. State, 136 Miss. 329, 101 So. 485, which was a case wherein a search was being made under a search warrant for intoxicating liquors, and integral parts of a still were found, upon which the appellant was indicted for possession of integral parts of a still, that the sheriff — "being lawfully in the residence of appellant, and finding these contraband articles therein, it became and was the duty of the sheriff to seize them and deal with them as provided by law." That is exactly what was done by the deputy sheriff in the case at bar. He was lawfully on the premises of the appellant by virtue of a search warrant for stolen beef, and while conducting the search pursuant thereto he discovered these contraband articles, to-wit; integral parts of a still, and it became and was his duty to seize them to deal with the appellant as provided by law.
The testimony of Mr. W.E. Cook, deputy sheriff, before the court in the absence of the jury, clearly shows that an affidavit was duly made before a justice of peace, and a search warrant issued thereon directing the search of appellant's premises for stolen beef. The testimony of this witness shows that the appellant's premises were clearly and accurately described in the affidavit and in the search warrant, and that the appellant was duly served with a copy of said warrant before search was made, and that in the course of the search integral parts of a still were found in the crib on the premises of the appellant.
It is also clearly shown by the testimony of the witness Cook, and the testimony of the circuit clerk, Mr. James Grissom, that the original affidavit and search warrant was duly placed before the grand jury and that sometime thereafter they were lost, destroyed or stolen.
It appears from the record in this case that the requirements in such cases as announced by this court in Pickle v. State, 15 Miss. 549, 118 So. 625, has been met, wherein this court stated — "We think, where evidence obtained by a search is offered, the search warrant and the affidavit upon which it is founded should be produced, or their loss established, and if lost the substantial contents of them should be proven."
In the case at bar the loss of the affidavit and search warrant is clearly established, and the substantial contents of said affidavit and search warrant is clearly shown. It is also shown that the deputy sheriff was warranted in making an affidavit for search warrant for stolen beef, and that the justice of peace was warranted in issuing search warrant thereon. Therefore, we contend that the deputy sheriff, Cook, was lawfully on the premises of the appellant and having obtained entry on appellant's premises by virtue of a lawful search warrant and finding thereon integral parts of a still which it was unlawful to possess, it was the duty of the officer to seize such contraband property, and to arrest the appellant, and such evidence was properly admitted to go before the jury, as held in the Reynolds case, supra. See also Crafton v. State, 200 Miss. 10, 26 So.2d 347, and Williams v. State, 198 Miss. 848, 23 So.2d 692.
Jefferson was convicted of the unlawful possession of the integral parts of a still under Section 2632, Mississippi Code 1942. He assigns a number of errors but his argument, reduced to its last analysis, is directed and limited to whether the evidence of his guilt was admissible. He says it was not and urges two reasons in support of his contention.
The first reason is grounded on these facts: The parts of the still were found by the officers upon premises occupied by and in the possession of appellant. (Hn 1) The warrant under which the officer made the search authorized a search for stolen beef. The officer made the search for that purpose. No beef was found, but in the course of the search therefor, the officer found the parts of the still. Appellant urges that under these circumstances no evidence of the finding of the still was competent. This court has ruled that question against appellant. Reynolds v. State, 136 Miss. 329, 101 So. 485, 486. In that case the warrant authorized a search for intoxicating liquors. During the search the officers found the integral parts of a still. The lower court admitted that evidence over the objection of defendant, just as was done in this case. This court, in passing upon the question in that case, said, "It is next contended that the search warrant did not authorize the search for a still or the integral parts of a still, and it was incompetent to admit the evidence of the finding of a still when the search warrant only authorized a search for intoxicating liquors. It seems to us that the reply to this contention is that the officers were legally in the residence and saw the still there, which by law was made a crime . . .", holding the evidence admissible.
The second reason urged against the competency of the evidence of the State is laid in this state of facts: (Hn 2) The affidavit for, and the warrant itself, were lost and could not be found when the trial was had. The State made oral proof of that fact and of the substance of those documents before the trial judge. That proof was full and specific. It disclosed every essential fact contained in the affidavit and the warrant, including the descriptions of the premises, that the warrant was returnable instanter, and every other necessary fact for a valid affidavit and warrant; that the warrant had been duly served and return of such service made thereon; that both papers had been filed in the court of the justice of the peace and in the circuit court, and were before the grand jury when the indictment was returned; that diligent and thorough search and inquiry had been made both by the sheriff and the circuit clerk and neither document could be found; that both had been misplaced, lost or stolen. That was all that was necessary preliminary to admission of the oral evidence of the search and the finding of the contraband articles. Pickle v. State, 151 Miss. 549, 118 So. 625. Indeed, that was all, in the nature of the case that could be done. No person could have remembered every word, figure and punctuation so as to substitute exact copies. The law, in such situation, does not require the impossible.
Affirmed.