Opinion
No. 32847.
November 8, 1937.
1. INTOXICATING LIQUORS.
In prosecution for unlawful possession of intoxicating liquor, it was proper to permit amendment of affidavit for search warrant to show correct date of making thereof before justice of the peace (Code 1930, section 1292).
2. INTOXICATING LIQUORS.
Where affidavit for search warrant and warrant contained identical descriptions of premises to be searched as to quarter section, township, and range, and mentioned certain crib on premises, and only evidence used against accused which was obtained under warrant was found in crib, variance as to whether premises were near store of named party or residence of such party, and as to name of party living across highway from premises, was surplusage, and not fatal.
3. CRIMINAL LAW.
In prosecution for unlawful possession of intoxicating liquor, admission in evidence of whisky found at point which was not shown to be on premises described in search warrant, and was eight or ten feet from path leading from premises and passing on beyond such point, was reversible error.
APPEAL from circuit court of Newton county. HON. D.M. ANDERSON, Judge.
Mize Mize, of Forest, for appellant.
The statutes authorizing searches and seizures are to be strictly construed against the State and a material deficiency in the affidavit or warrant will render the warrant void.
Holberg Mer. Co. v. State, 48 So. 622; Livelar v. State, 53 So. 681; Tucker v. State, 90 So. 845; Turner v. State, 98 So. 240; Owens v. State, 98 So. 235.
In the Owens case the affidavit for search warrant did not contain the words "does believe," and the court held that this was a material deficiency. It is our belief that the failure of the search warrant to be dated, when sworn to, was a material and prejudicial error to appellant.
We further believe that the variance in description in the affidavit and search warrant was grave error to the appellant. The description in the affidavit read: "in a small erected building just across highway from Renebel Simmons dwelling," and the description in the warrant read: "in a small erected building just across Hi-way from Rena Bell Evans."
Morton v. State, 142 Miss. 100, 101 So. 379.
We submit that the description given in the warrant, "in a small erected building across Hi-way from Rena Bell Evans," did not conform with the description given in affidavit, and therefore because of the variance in description the warrant was void, and for this error this case should be reversed.
We contend that the search warrant was void, and same being true, the evidence procured by the unlawful search is not admissible.
Tucker v. State, 90 So. 845; Williams v. State, 92 So. 584; Brewer v. State, 107 So. 376.
The warrant and affidavit called for the search of only thirty acres. We submit that it would be physically impossible for the liquor found a half mile from the residence of Arch Simmons to be upon the land described in the affidavit and search warrant.
W.D. Conn, Jr., Assistant Attorney General, for the state.
It may be conceded at the outset that there is a variance in the description as contained in the two instruments. However, the state submits that the description of the premises to be searched as that "of Sarah Johnson in the fourth district of Newton County, Mississippi and on Section 27, Township 6, Range 10 in said Newton County, Mississippi" is a sufficient description and the balance may be treated as surplusage.
Bradley v. State, 134 Miss. 20, 98 So. 458; Forshee v. State, 152 Miss. 566, 120 So. 462.
The premises searched are shown to have contained a store building, a crib and a dwelling house. According to the fair import of Sheriff Buckley's testimony there was no other nearer neighbor than a half-mile away. The two pints of liquor were found between 75 and 100 yards away from the house and just to the side of a path, a clearly defined path which led from the store building and dwelling house out into the woods. The sheriff testified he did not know where the lines were and could not swear that this whiskey was on premises controlled by the appellant, Arch Simmons. Arch Simmons, the appellant, was shown to have been in control of the storehouse, the dwelling house and the crib, which was searched.
With his nearest neighbors a half mile away and considering the physical surroundings, the state submits that it was a question for the jury as to whether or not this liquor was, in fact, in the possession of the appellant, Arch Simmons, and certainly, in view of all the circumstances, it was not error for a profert to have been made of the whiskey which was found under those circumstances.
This appeal is from a judgment of the circuit court of Newton county which affirmed a judgment of the County Court of said county wherein the appellant was convicted of the unlawful possession of intoxicating liquor and sentenced to pay a fine of $250 and costs, and to serve a term of 90 days on the county road.
E.V. Buckley, sheriff of the county, made an affidavit for a search warrant before C.R. Hardy, justice of the peace, which averred that he had good reason to believe, and did believe, that intoxicating liquor was being stored, kept, owned, controlled, and possessed for the purpose of sale, in violation of law, in the residence, outhouses, barns, crib, etc., and in the field, yard, garden, and woods near the residence of Sarah Johnson in the Fourth district of Newton county, Miss., and on section 27, township 6, range 10 in said county and state, and more particularly described as follows, "30 A SW 1/4 S.E. 1/4 S of Highway #80 in a small erected building just across Highway from Renebel Simmons Dwelling, and the affidavit prayed for the search of said premises and the arrest of the appellant, Arch Simmons, and any other person or persons in charge, possession, or control thereof. A search warrant was thereupon issued, reciting the averments of the affidavit as to the premises in question, except that the field and woods to be searched were described as being near the "Store or Shop of Sarah Johnson," instead of near the "residence of Sarah Johnson" in the quarter section, township, and range described in the affidavit; and with the further exception that the "small erected building" to be searched was described as being situated just "across Highway from Rena Bell Evans," instead of "across Highway from Renebel Simmons Dwelling."
The introduction of the affidavit and search warrant was objected to by appellant on the ground that there was a fatal variance in them between the description of the premises to be searched, and on the further ground that the affidavit was not dated. The court below permitted the affidavit to be amended so as to show the correct date, and we think properly so, under the authority of section 1292, Code 1930, and numerous decisions of this court construing the same.
As to whether the variance in the description of the premises contained in the affidavit for the search warrant and that contained in the search warrant was fatal, the testimony shows that the only whisky found on the premises described was found in the crib mentioned in both the affidavit and the search warrant, and situated in the quarter section, township, and range where the premises of Sarah Johnson, occupied by appellant, were situated. We are, therefore, of the opinion that the part of the description wherein the variance occurs may be treated as surplusage; since the premises are sufficiently identified by the remaining part of the description contained in both instruments. Bradley v. State, 134 Miss. 20, 98 So. 458; Forshee v. State, 152 Miss. 566, 120 So. 462.
It appears that the whisky found on the premises searched was contained in about 8 or 10 quart jars, in cases, and in several bottles and jugs; there being only a small quantity in any of them, and which, according to the testimony of the sheriff, was such a quantity as would drain back into the bottles when the liquor was poured out.
After finding the jars, bottles, and jugs in the crib, containing the whisky hereinbefore mentioned, the sheriff went in an easterly direction from the residence occupied by the appellant and the other buildings used by him for a distance of some 70 or 75 yards, and found two pints of whisky about 8 or 10 feet off from a path which extended on beyond where this whisky was found, and at a place which the state was unable to show was on the premises of the appellant. And since the path referred to did not lead directly from the residence or other buildings occupied by the appellant to the place where the whisky was concealed, but only passed near it and extended on beyond, and to the dwelling houses of other persons so far as is shown by the record, it was not competent to introduce this evidence against the appellant, in the absence of proof that he had this whisky in his possession or under his control. The admission of this evidence against the appellant, over his objection, was prejudicial, and constituted reversible error.
Reversed and remanded.