Opinion
No. 36221.
February 10, 1947.
1. CRIMINAL LAW.
An appeal from judgment of circuit court affirming a judgment of county court which had affirmed a judgment in a justice court convicting defendant of possession of intoxicating liquor was required to be dismissed, though defendant claimed that a constitutional question arose out of issuance of search warrant in violation of constitution, where Supreme Court discovered no such constitutional question in the courts below, and defendant failed to point out such in his brief (Code 1942, sec. 1617; Const. 1890, sec. 23).
2. CRIMINAL LAW.
In order to justify an appeal to Supreme Court from judgment of circuit court affirming a judgment of county court which had affirmed a judgment in a justice court convicting defendant of possession of intoxicating liquor, presence of a constitutional question and granting of such an appeal by circuit judge were required to concur (Code 1942. sec. 1617).
APPEAL from the circuit court of Pike county. HON. J.F. GUYNES, J.
McClaren Hagee, of McComb, for appellant.
The search and seizure made under the search warrant and affidavit for seach warrant was illegal void and contrary to the provisions of Article 3, Section 23, of the Constitution of Mississippi and of the statutes of Mississippi on search and seizure, and the evidence offered thereunder was inadmissable and contrary to law.
The conviction on the evidence as shown by the record was contrary to the law and evidence and violates the appellant's rights as a citizen and his guarantee by the Constitution of the United States under the 4th and 8th Amendments.
City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; Quick v. State, 192 Miss. 789, 7 So.2d 887; Walker v. State, 199 Miss. 289, 24 So.2d 751; Byles v. State ex rel. Perry (Ala.), 87 So. 856.
His conviction if allowed to stand violates his constitutional rights under the Constitution of the State of Mississippi in Article 3, Section 28, by inflicting cruel and unusual punishment.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The facts in this case, briefly stated, are as follows: The constable of the justice of the peace district in which the appellant was tried, armed with a legal search warrant for the appellant's premises, proceeded to make the search as directed by the warrant and found some intoxicating liquor in a field north of where appellant lived. According to the record, when this case was tried in the county court the appellant's defense was that he had no control or possession of the premises where the liquor was found due to the fact that he had previously rented this land to one Jonas Wells several months prior thereto. A rent note to this effect was also introduced in the evidence. These facts are not disputed.
The main contention relied upon by the appellant is that appellant's constitutional rights were violates by an unlawful search and seizure as set out by Section 23 of the Constitution of 1890. When the defendant solemnly swore that the property was not his property, he eliminated the search and seizure question from the case, and the case then stood before the jury upon the testimony of the officer and the defendant, as to whether the property belonged to the defendant. It is familiar learning that an oath, deliberately and solemnly taken, will estop a person taking the same from asserting the contrary thereafter. Certainly the appellant waived his right to claim the search was unlawful when he solemnly and deliberately testified, on oath, that the property was not his property.
Ross v. State, 140 Miss. 367, 105 So. 846.
See also Brown v. State, 192 Miss. 314, 5 So.2d 426.
An appeal in a case originating in the justice court and appealed to county and circuit courts will be dismissed unless a constitutional question is involved.
Williams v. State, 160 Miss. 489, 135 So. 199; Johnson v. City of Hattiesburg, 170 Miss. 527, 155 So. 418; Keeton v. State, 197 Miss. 11, 19 So.2d 477; State v. Warren, 197 Miss. 13, 19 So.2d 491; Code of 1942, Sec. 1617.
The appellant was charged, in a court of the justice of the peace, with the possession of intoxicating liquor. From a conviction there he appealed to the county court where the same result followed, and from there appealed to the circuit court, where the judgment of conviction was affirmed and the circuit judge granted an appeal to this Court under Section 1617, which provides "that there shall be no appeal from the circuit court to the Supreme Court of any case civil or criminal which originated in a justice of the peace, municipal or police court and was thence appealed to the county court and thence to the circuit court unless in the determination of the case a constitutional question be necessarily involved and then only upon the allowance of the appeal by the circuit judge or by a judge of the Supreme Court."
The appellant's claim is that a constitutional question arises out of the issuance of a search warrant here in violation of Section 23 of our Constitution. We have discovered no such constitutional questions in the proceedings in the courts below, and the appellant has failed to point out such in his brief. The presence of a constitutional question and the granting of such an appeal by the circuit judge must concur in order to justify such an appeal to this Court. Consequently, this appeal must be, and will be, dismissed.
So ordered.