15 So. 2d 438 | Miss. | 1943
Lead Opinion
Appellant was convicted upon a charge of the possession of intoxicating liquors. The evidence, upon which *303 the conviction rests, was obtained by officers in the course of the execution of a search warrant. We will discuss briefly two contentions made by appellant in respect to that warrant, and, first, that it was invalid because issued on Sunday.
The fact that a search warrant is issued on Sunday does not render it invalid, unless expressly prohibited by statutory enactment. 47 Am. Jur., p. 520, par. 30. There is no such prohibition in any of our statutes. The question was considered in State v. Conwell,
The second contention is that the warrant was invalid, because issued solely upon the statutory affidavit, Section 1975, Code 1930, that the affiant "has reason to believe and does believe," etc. Byars v. United States,
But in Tucker v. State,
We have carefully considered the other points presented by appellant and find no reversible error.
Affirmed.
Dissenting Opinion
Section 1975, Code 1930, is violative of sections 23 and 26 of our Constitution (the search and seizure and self-incrimination provisions), and the decisions of our court in Mai v. State,
The affidavit for the search warrant, and the search warrant itself, complied with section 1975 of the Code. The affidavit alleged that the affiant "has reason to believe, and does believe," that intoxicating liquor was kept and stored, etc., by the appellant. On the trial appellant objected to the introduction of the affidavit and search warrant, which objection the court overruled, and in addition offered, but was not permitted by the court, to prove that the justice of the peace issuing the warrant had nothing before him as to the guilt of the appellant *305 except that language in the affidavit. And, furthermore, that the constable making the affidavit had no facts before him on which to base it, but only rumors and hearsay. The court, in its ruling, followed the decisions of our court above referred to. Section 23 provides that the people shall be secure in their persons, houses and possessions from unreasonable search and seizure, and that no warrant shall be issued without probable cause, supported by oath or affirmation, designating the place, etc., to be searched. Section 26 provides, among other things, that in criminal prosecutions the accused shall not be compelled to give evidence against himself. The Search and Seizure provision of the Federal Constitution (Article 4 of the Amendments) is substantially the same as section 23 of our Constitution; and the self-incrimination clause of Article 5 of the Amendments to the Federal Constitution is substantially the same as a like clause in section 26 of our Constitution. Many other states of the Union — perhaps all of them — have substantially the same constitutional provisions.
If the decision of the issuing officer is res judicata as to probable cause, that would mean, of course, that whatever he considered probable cause would be the end of the inquiry. He could base it on hearsay or rumors. Suppose the proceeding originated through ill-will and malice on the part of the officer — would that be foreclosed, also? I think those decisions of our court mean exactly that. In Tucker v. State,
compelling a man `in a criminal case to be a witness against himself,' which is condemned in the fifth amendment, throws light on the question as to what is an `unreasonable search and seizure' within the meaning of the fourth amendment."
Quoting at length, with approval, what Lord CAMDEN said in Entick v. Carrington, Justice BRADLEY continues: The principles therein laid down "affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment. In this regard the fourth and fifth amendments run almost into each other."
Mississippi is one of the few, if not the only state, which holds that the question of probable cause is foreclosed by the action of the officer issuing the warrant. Search and Seizure (Cornelius) 2nd Ed., Secs. 178, 444, and notes. The Supreme Court of the United States, in Byars v. United States,
Statutes authorizing searches and seizures are to be strictly construed against the state, and material deficiencies in the affidavit or warrant would render both void. Turner v. State,
In its last analysis the contrary view simply means that the defendant may be convicted alone on the language of the affidavit and search warrant — "has reason to believe and does believe." I see no reason why the 4th and 5th Amendments to the Constitution of the United States do not apply to state action as well as federal action. Their language is broad enough. The Weeks case,