Atwood v. State, 111 So. 865

Atwood v. State

111 So. 865 | Miss. | 1927

Lead Opinion

^* Corpus Juris-Cyc References: Intoxicating Liquors, 33CJ, p. 677, n. 23; p. 797, n. 39; Oath, 29Cyc, p. 1297, n. 1, 2, 3; p. 1298, n. 4, 5; p. 1304, n. 47; Perjury, 30Cyc, p. 1417, n. 41; Searches and Seizures, 35Cyc, p. 1266, n. 13. As to form and sufficiency of "oath," see 20 R.C.L. 508. Appellant was indicted and convicted in the circuit court of Lamar county of the crime of possessing intoxicating liquor, and fined two hundred fifty dollars, and sentenced to ninety days' imprisonment. From that judgment appellant prosecutes this appeal.

The intoxicating liquor, for the possession of which appellant was convicted, was discovered in the possession of appellant, and seized by the sheriff of Lamar county by virtue of a search warrant theretofore obtained *667 by him for that purpose. The evidence of the guilt of appellant was obtained by virtue of such search and seizure; and, if the search and seizure were unauthorized by law, the evidence should have been excluded. The principal question in the case is whether or not the search warrant was supported by the required affidavit under section 23 of the Constitution, which provides, among other things, that "no search warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched."

The affidavit for the search warrant was signed by the affiant in the presence of a justice of the peace for the purpose of obtaining such warrant. It is true that the justice of the peace did not require the affiant to hold up his hand to be sworn, nor was there any formal oral administration of the oath to the affiant by the justice of the peace; but the evidence shows, without conflict, that both the affiant and the justice of the peace knew and realized that an oath was necessary before a search warrant could be obtained, and they considered what was done at the time the oath was signed by the affiant and the warrant issued by the justice of the peace to be sufficient in law to constitute an oath. The justice of the peace, in his testimony, stated that he did not have the affiant hold up his hand and be sworn, because he did not think it was necessary, and that it was not customary for him to do so in such a case; that the signing of the affidavit by the affiant and the affixing of the jurat by him was "just like acknowledging a land deed." In short, the evidence shows that the person making the affidavit for the search warrant went to the justice of the peace, and told him that he wanted to make the necessary affidavit for the search warrant that was afterwards issued. The affidavit was thereupon prepared, the affiant signed it in the presence of the justice of the peace, and the latter affixed his jurat thereto. Both of them understood, without anything being said to that *668 effect, that the affiant was making the necessary affidavit to obtain the search warrant.

Appellant contends, under the authority of Borders v.State, 138 Miss. 788, 104 So. 145, that the affidavit and search warrant in question were void, because the justice of the peace failed to administer to the affiant, in some oral form, the required oath to the affidavit. In that case it was contended by appellant, and in effect conceded by the attorney-general, that such a formal oath was necessary, and, in deciding the case, the court so assumed. The court held that the evidence in that case was insufficient to show that the formal oral oath had not been administered to the affiant seeking the search warrant; that, where the affidavit and the jurat of the officer taking the oath of the person making the affidavit appeared regular, a recital in the affidavit that the necessary oath was administered in order to obtain the search warrant could not be overturned by the uncertain testimony of the person making the affidavit to the effect that he was doubtful as to whether the oath had been formally administered to him or not, but that his best recollection was that it had not been; that the presumption of the truth of such a recital in an official record could not be overturned by such uncertain evidence. The question here involved was not considered and decided in that case.

What is an oath, and how is it made? The authorities state what constitutes an oath in varying language, but they are in substantial agreement that an oath is an outward pledge given by the person taking it that his attestation is made under an impending sense of his responsibility to God; that the affiant believes in the existence of a God who will visit punishment upon him if he swears falsely as to the alleged fact. It is an appeal to God by the affiant, when taking the oath, to witness the truth of what he swears, and an imprecation that Divine vengeance be visited upon him if his oath be false. Bouvier's Law Dictionary, 2388; 20 R.C.L. 504, section 1. *669 The form of the oath is immaterial so long as it appeals to the conscience of the party making it, and binds him to speak the truth. Whenever the attention of the affiant is called to the fact that his statement is not mere assertion, but must be sworn to, and he is then called upon to do some corporal act, and does it, this is sufficient to constitute an oath. It is not necessary to have the affiant hold up his hand when taking the oath. 20 R.C.L. 508, section 4; Dunlap v. Clay, 65 Miss. 454, 4 So. 118. In the case of Dunlap v. Clay, the question was as to the sufficiency of the oath to an affidavit for attachment. The affidavit was read to the affiant in the presence of the justice of the peace, and the affiant then stated to the justice of the peace that he swore to the same. The affiant did not sign the affidavit, nor did he hold up his hand to be sworn, nor was the jurat to the affidavit signed by the justice of the peace. The court held that the affidavit had been properly sworn to; that both the affiant and the official before whom the affidavit was made understood that what was done was all that was necessary to complete the oath. The court said that what was done "was sufficiently formal." In the case of McCain v. Bonner,122 Ga. 842, 51 S.E. 36, there was involved the validity of an oath where the affiant presented to the magistrate an affidavit which he had already signed, and told the magistrate that he wished to swear to the facts therein stated. The magistrate, understanding that it was the affiant's intention to swear to the facts set out in the affidavit, thereupon affixed his jurat thereto. The court said that it was not essential that the affiant should hold up his hand and swear in order to make his act an oath, but it was sufficient if both the affiant and the officer understood what was done was all that was necessary to complete the oath. In the case of State v. Madigan, 57 Minn. 425, 59 N.W. 490, a like question was involved. The defendant was indicted for perjury. The question was whether or not he had on the occasion in question taken an oath. An affidavit for attachment was signed *670 by the defendant and presented to the county commissioner for the purpose of obtaining a writ of attachment. When the affidavit was presented to the commissioner, he said: "Is that your signature?" to which question the defendant replied, "Yes." Whereupon the commissioner affixed thereto his jurat and seal of office, and issued the writ of attachment. The court held that what occurred was sufficient to show that the defendant actually took the oath necessary to obtain the writ. It is true that some unequivocal act must be done to distinguish between an oath and a bare assertion; an act clothed in such form as to characterize and evidence it as an oath. 20 R.C.L. 508, section 4. Was what occurred in the present case between affiant and the justice of the peace such an unequivocal act? We think it was. The affiant went to the justice of the peace for the avowed purpose of obtaining a search warrant, and the justice of the peace knew that he came for that purpose. Both of them knew that an oath was necessary to be administered before the warrant could be issued, and with that knowledge each of them did what he considered proper for the administration of the oath. The affiant, in the presence of the justice of the peace, signed the affidavit; the justice of the peace thereupon affixed his jurat thereto, and issued the search warrant in proper form. Although not a word was said by either in reference to an oath, they both knew an oath was necessary, and both intended that the necessary thing should be done in order to obtain the search warrant. We think, by construction, what occurred amounted to the taking of the necessary oath by the affiant. One may speak as plainly and effectually by his acts and conduct as he can by word of mouth. It follows from these views that the trial court committed no error in admitting the evidence obtained by the search warrant.

The case must be reversed, however, and sent back to the trial court alone for a new sentence. The sentence was excessive.Buford v. State, No. 25764, *671 111 So. 850, handed down the 21st day of February, 1927. In all other respects the judgment is affirmed.

Affirmed in part, and reversed and remanded in part.

Dissenting Opinion

I think the present decision is in conflict with Carlisle v.Gunn, 68 Miss. 243, 8 So. 743. If there is a line of demarcation, it is exceedingly dim. I think that the administering of an oath with all the impressiveness of formality is a much safer practice than merely the signing of a person's name to a paper.

The mischief growing out of the practice of an affiant and an officer merely signing their names to a writing is well illustrated in Case v. People, 76 N.Y. 242, where affiant signed his name to a paper and sent it by a servant to a notary public, who signed same, treating it as an affidavit, which the court held to be insufficient.

There are many people to whom the solemnity of formally calling upon God to witness the truth is more effective than it seems to be considered in the majority opinion. Many people make a marked distinction between signing a paper containing a statement and calling upon Deity to witness that they are telling the truth under the penalty of Divine condemnation should they testify falsely. The law proceeds upon the theory, in requiring sworn testimony and sworn affidavits, that the invoking of Deity as a witness appeals to the conscience more strongly than a mere statement or asseveration. Many valuable rights depend upon this searching of the conscience of the witness. See 30 Cyc. 1417; 22 Am. Eng. Ency. of Law, 783; Sloan v. State, 71 Miss. 459, 14 So. 262; Markey v. State, 47 Fla. 38, 37 So. 53;O'Reilly v. People, 86 N.Y. 154; 40 Am. Rep. 525; Green v.Boon, 57 Miss. 617. *672