Opinion
No. 34681.
June 9, 1941.
1. INTOXICATING LIQUORS.
Where, in affidavit for search warrant, premises to be searched for unlawful possession of intoxicating liquor were described as being in section 12, whereas in the search warrant the premises were described as being in section 22, the variance was not "fatal," where in each of the documents the particular description was identical, since the particular description controlled over the general description.
2. CRIMINAL LAW.
Where affidavit for search warrant was made before a justice of peace of district in which town of Carthage was situated, and search warrant was issued by him, prosecution for unlawful possession of intoxicating liquor in violation of ordinance of the town of Carthage was properly tried before mayor of the town of Carthage, as against contention that justice of peace issuing search warrant had exclusive jurisdiction.
3. CRIMINAL LAW.
Mayor of town rather than justice of peace had jurisdiction of offense against ordinances of the town.
4. CRIMINAL LAW.
Where possession of intoxicating liquor is violation of laws of state and also of municipalities, trial and conviction therefore under laws of one does not bar trial and conviction under the laws of the other.
APPEAL from the circuit court of Leake county, HON. PERCY M. LEE, Judge.
O.H. Barnett, Jr., of Carthage, for appellant.
A justice of the peace court has jurisdiction concurrent with the circuit court, over misdemeanors, and, where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction acquires exclusive jurisdiction.
Hampton v. State, 103 So. 10; Sec. 3097, Code 1930.
Since the justice court in the Town of Carthage first acquired jurisdiction of this case, the jurisdiction of the justice court and the mayor's court being concurrent, it then acquired exclusive jurisdiction, and the mayor's court had no jurisdiction conferred upon it when it assumed the trial of this case.
The mayor's court had no jurisdiction of the case, and its judgment is void. The judgment of the first trial court being void, the circuit court had no jurisdiction of this case. If the circuit court had no jurisdiction of this case, then its judgment is void, and we submit that is true. The question of jurisdiction may be raised for the first time on appeal to the Supreme Court.
Section 23 of the Constitution of Mississippi provides among other things that the search warrant shall "specially designate the place to be searched."
Section 1975, Code of 1930, provides that no search warrant shall be issued except upon affidavit of a creditable person first having been made and describing the place to be searched in the affidavit.
A search warrant which did not conform to affidavit on which warrant was issued, nor authorized search of any farm building on place described thereon was void.
Crosby v. State, 110 So. 122; Morton v. State, 101 So. 379.
It can readily be seen that both the affidavit and the search warrant in this case were wrong. The affidavit for the search warrant puts the land in section 12, and the search warrant itself puts the land in section 22. In addition, the search warrant places the residence of this defendant in the New Addition to the Town of Carthage, and the affidavit for the search warrant says nothing about the New Addition to the Town of Carthage. There is a fatal variance between the affidavit for the search warrant and the search warrant on which this affidavit was issued.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
The description relied on by the court was "the residence of Dave May on the farm of A.C. Ellis situated on South side of Red Dog Road and West side of Town Creek" and was sufficient and the other was not essential to the description and an officer would be able from the description to locate the residence of Dave May upon the A.C. Ellis farm and all of the proof shows that that was done.
Matthews v. State, 100 So. 18, 134 Miss. 807; Loeb v. State, 133 Miss. 883, 98 So. 449.
The justice of the peace does not acquire exclusive jurisdiction because the record does not show any plea of either former acquittal or conviction, or pending suit instituted, prior to the affidavit before the mayor; and, second, because this prosecution is based on violating a town ordinance of Carthage, which was introduced and constitutes a part of the record. The only proceeding in this case shows the proceeding in the mayor's court for violation of the town ordinance, and this prosecution may be maintained, even though the appellant had been tried and acquitted in the justice of the peace court for violating the state law. This is expressly authorized by statute which has been held constitutional in a number of cases in this court.
F.E. Leach, of Carthage, for appellee.
It is apparent to the court that the mayor of Carthage, Mississippi was also an ex-officio justice of the peace within the municipality and that said mayor had jurisdiction to try a misdemeanor and impose a penalty for a violation of an ordinance of the town; and that he also had jurisdiction to try a misdemeanor committed within said municipality as a justice of the peace and impose a fine for violation of the laws of the state. In most municipalities this dual right is performed and two fines are imposed, one for the state and one for the municipality, and I do not deem it necessary to cite any authority on a point so elementary as this.
Irrespective of the description in the affidavit and search warrant as to the section of the land in which the residence of Dave May was located, there could not be a more accurate description of his premises than that embodied in the affidavit and search warrant.
Appellant was charged, tried, and convicted under the ordinances of the Town of Carthage of the crime of unlawful possession of intoxicating liquor and fined $100 and sentenced to ten days in prison. From that judgment he prosecutes this appeal.
Two grounds for the reversal of the judgment are urged: (1) a variance between the description of the premises to be searched as described in the affidavit for the search warrant and the description in the search warrant itself; (2) a lack of jurisdiction in the mayor's court in which appellant was tried and convicted upon the ground that the justice of the peace issuing the search warrant had exclusive jurisdiction. We will dispose of those contentions in the order stated.
(1) In the affidavit for the search warrant the premises to be searched are described as follows: "Sold or offered for sale in violation of law, in the residence, outhouse, barn, stalls, smokehouse, crib, and in the field, yard and garden and woods near the residence of Dave May in the 2nd district of said Leake County, Mississippi, and on Section 12, Township 10, Range 7 in said Leake County, Mississippi, and more particularly described as follows: On the farm of A.C. Ellis, on old Red Dog Road and on west side of Town creek, in violation of the Laws of the State of Mississippi, and this belief is not feigned of malice against Dave May who is believed to be guilty of said violations, but is founded on credible information." In the search warrant itself this is the description of the premises: "Sold or offered for sale in violation of the law in the residence, outhouses, barns, stalls, smokehouses, crib, and in the yard and garden, and in the field and woods near the residence of Dave May in the 2nd district of Leake County and on Section 22, Township 10, Range 7 in said County, and more particularly described as follows: On the farm of A.C. Ellis, on old Red Dog Road and west of Town Creek in New Addition, Town of Carthage, in violation of the laws of the State of Mississippi."
It will be observed that the principal difference in the description of the premises in the two documents is that in the affidavit they are described as being in Section 12, Township 10, Range 7, and in the search warrant as Section 22, Township 10, Range 7. However, in each of them the particular description is identical. That controls over the general description.
(2) The affidavit for the search warrant was made before a justice of the peace of the district in which the Town of Carthage is situated. The search warrant was issued by him. The prosecution was before the mayor of the Town of Carthage. Appellant was charged with the unlawful possession of intoxicating liquor in violation of the ordinances of the town. The evidence obtained by the search was indispensable to his conviction. Appellant contends that the jurisdiction of the subject matter was concurrent in the justice of the peace and the mayor, and the former having first acquired jurisdiction by the reception of the affidavit and issuance of the search warrant the jurisdiction of the mayor was excluded. The fault in that contention is that the justice of the peace and the mayor were without concurrent jurisdiction of offenses against the ordinances of the town. The mayor alone had that jurisdiction. The possession of intoxicating liquor is a violation of the laws of the state and also of the municipalities therein. The trial and conviction therefore under the laws of one does not bar the trial and conviction under the laws of the other.
Affirmed.