Opinion
No. 43594.
October 4, 1965.
1. Intoxicating liquors — search and seizures — evidence.
In view of evidence that a defendant voluntarily pulled bottles from his pocket and gave them to the sheriff when handed a search warrant, Court did not err in admitting evidence relating to possession of whiskey on person of such defendant in suit to enjoin operation of unlawful business and possession of intoxicating liquors in filling station.
2. Injunction — intoxicating liquors — evidence — permanent injunction justified.
Evidence that whiskey had been found on premises of filling station and on employee of station owner, employee had pleaded guilty to operation of unlawful business and possession of intoxicating liquors in a filling station, and station had bad reputation as to intoxicating liquors, was sufficient to justify decree permanently enjoining owner and employee from such operation and possession.
3. Intoxicating liquors — searches and seizures — search warrant and injunctive decree sufficiently identified premises.
Search warrant and decree permanently enjoining defendants from operation of unlawful business and possession of intoxicating liquors in a filling station sufficiently identified the station where, in indicating location of service station they properly referred to lot numbers and addition to city, even though official map did not show a Block B in which warrant and decree indicated station was located.
Headnotes as approved by Jones, J.
APPEAL from the Chancery Court of Chickasaw County, R.P. Sugg, Chancellor.
Armis E. Hawkins, Houston, for appellant.
I. The Court erred in permitting evidence revealed by the search of the person of the appellant, Tom Mann. Burnside v. State, 144 Miss. 405, 110 So. 121; Comby v. State, 141 Miss. 561, 106 So. 827; Duckworth v. Taylorsville, 142 Miss. 440, 107 So. 666; Ellis v. State, 65 Miss. 44, 3 So. 188; Everett v. State, 232 Miss. 816, 100 So.2d 583; Fisher v. State, 145 Miss. 116, 110 So. 361; Lee v. State, 137 Miss. 329, 102 So. 296; Lee v. State, 236 Miss. 716, 112 So.2d 254; Stokes v. State, 240 Miss. 453, 128 So.2d 341; Turnage v. State, 234 Miss. 68, 105 So.2d 483; Whip v. State, 143 Miss. 757, 109 So. 697; Williams v. State, 72 Miss. 117, 16 So. 296.
II. The evidence was insufficient to justify a permanent injunction against appellants restraining them from violation of the prohibition laws of the State of Mississippi. Lee v. State, 234 Miss. 21, 105 So.2d 346; State v. Ingram, 179 Miss. 485, 176 So. 392; Thornhill v. State, 234 Miss. 48, 105 So.2d 161; Warren v. State, 231 Miss. 343, 95 So.2d 237.
R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities: Adams v. State, 202 Miss. 68, 30 So.2d 593; Aldinger v. State, 115 Miss. 314, 75 So. 441; Borders v. State, 138 Miss. 788, 104 So. 145; Burnside v. State, 144 Miss. 405, 110 So. 121; Cangelosi v. State, 172 Miss. 252, 159 So. 846; Christian v. State, 250 Miss. 819, 168 So.2d 532; City of Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590; Collins v. State, 178 Miss. 548, 174 So. 61; Everett v. State, 232 Miss. 816, 100 So.2d 583; Harris v. State, 216 Miss. 895, 63 So.2d 396; Holston v. State, 161 Miss. 654, 137 So. 501; Johnson v. State, 179 Miss. 446, 176 So. 164; Little v. State (Miss.), 50 So.2d 390; Loeb v. State, 133 Miss. 883, 98 So. 449; Mason v. State (Miss.), 32 So.2d 140; Matthews v. State, 134 Miss. 807, 100 So. 18; May v. Town of Carthage, 191 Miss. 97, 2 So.2d 801; Owens v. Reese, 203 Miss. 322, 33 So.2d 834; Peebles v. State (Miss.), 57 So.2d 263; Pigford v. State, 184 Miss. 194, 183 So. 259; Quan v. State, 185 Miss. 513, 188 So. 568; Smith v. State, 187 Miss. 96, 192 So. 436; Stewart v. City of Jackson, 178 Miss. 709, 174 So. 56; State v. Hoyt (Miss.), 178 So. 89; State v. White, 178 Miss. 542, 173 So. 456; Thornhill v. State, 234 Miss. 48, 105 So.2d 161; Turnage v. State, 234 Miss. 68, 105 So.2d 483; Vol. XXVIII No. 1, Mississippi Law Journal, Search and Seizure in Mississippi (Rodgers), 20.
This case comes from the Chancery Court of the First Judicial District of Chickasaw County on a decree of the chancellor enjoining Tom Mann and John Allen Moore from the operation of an unlawful business and possessing, keeping, etc., intoxicating liquors in a filling station in the City of Houston in that county. The station was owned by Moore, and Mann was an employee. We affirm.
There are two assignments of error: (1) That the court erred in permitting evidence relating to the possession of whiskey on the person of the defendant, Tom Mann; and (2) the evidence was insufficient to justify the permanent injunction.
The first assignment arises because of the following facts. The sheriff testified that with a search warrant, which was introduced in evidence and which was directed against both defendants, he went to the filling station and met the appellant Moore near the front. There the sheriff handed Mann a copy of the search warrant and said: "Tom, I have a search warrant for you; have you got it on you?" Then the appellant Mann pulled bottles from his pockets and handed them to the sheriff. The sheriff then arrested Mann. The return showed there were four half pints — one was vodka, one gin, and two whiskey. The sheriff did not touch the appellant Mann in any way, except that he may have shaken hands when he arrived. The next day on an affidavit charging possession of liquor, the appellant Mann entered a plea of guilty.
(Hn 1) The city marshal who accompanied the sheriff testified that he walked up just as the sheriff was saying something to Mann; he did not know what he was saying, but when he walked up the sheriff was touching him on the leg and Mann was running his hand in his pockets and pulling out bottles. There is no further explanation of this statement by the marshal. The sheriff denied he searched the appellant and testified the appellant produced the whiskey voluntarily when given a copy of the search warrant. The lower court accepted the testimony of the sheriff and entered a decree permanently enjoining in accordance with the statute.
(Hn 2) As to the second assignment, the station was owned by appellant Moore. There was in evidence the fact that whiskey had been discovered upon Moore's employee, Mann; that Mann entered a plea of guilty to the possession of whiskey, which plea was entered the day following the search; that the place had been searched prior to that time, and upon one occasion whiskey had been found in an abandoned car on the premises, but it was never ascertained whose car it was. Several witnesses testified that the station had a bad reputation as to intoxicating liquors.
The sheriff further testified when he was first elected he talked with Moore and Moore agreed to stop dispensing liquor, but later Moore talked to him and told him that he was going to resume such operations. We think under these facts the chancellor was fully justified in entering the decree which he did enter.
(Hn 3) The question is raised as to the description of the property. In the search warrant and in the decree the property was described as Lots 11 and 13, Block B, Forest Addition of the city, and "being further described as that place known as Moore's Deep Rock Service Station." There was no dispute that appellant Moore owned "Moore's Deep Rock Service Station," that Mann was employed there, that whiskey was found there; but the question is raised that the official map of the Forest Addition does not have a Block B. A copy of the map of the Forest Addition shows only one block and it is unlettered. However, as stated, the search warrant and the decree describe the property as "that known as Moore's Deep Rock Service Station" and there is no dispute that it is situated upon Lots 11 and 13 of the Forest Addition. The description is sufficient to identify the property and under the circumstances the addition of the words "Block B" would be surplusage.
Neither of the appellants testified and the facts heretofore shown were undisputed.
In our opinion, the chancellor was amply justified in entering the decree which he did enter and the case is affirmed.
Affirmed.
Lee, C.J., and Gillespie, Brady and Inzer, JJ., concur.