Borders v. State

104 So. 145 | Miss. | 1925

Lead Opinion

^* Headnote 1. Criminal Law, 16 C.J., Section 683 (1926 Anno); 2. Intoxicating Liquor, 33 C.J., Sections, 372, 381; Searches and Seizures, 35 Cyc., p. 1266; 3. Intoxicating Liquor, 33 C.J., Section 373; 4. Criminal Law, 16 C.J., Section 2506; 5. Intoxicating Liquor, 33 C.J., Section 541; 6. Criminal Law, 16 C.J., Section 2293. Appellant was convicted, in the court of a justice of the peace of Clay county, of the charge of having in her possession more than a quart of intoxicating liquor. From that judgment she appealed to the circuit court, where there was a trial de novo resulting in another conviction, from which judgment she appeals to this court.

Several errors are assigned and argued.

The justice of the peace trying the case sent up to the circuit court the affidavit before him charging appellant with the offense of which she was convicted, the judgment of the court convicting her, and her appeal bond. Attached to these papers, or one of them, the justice of the peace certified (using the language of the certificate) "that the above and foregoingpaper (italics ours) are true copy of the proceedings had in my court in the matter of the State v. Roberta Borders in a charge of the unlawful possession of intoxicating liquors."

Appellant made a motion in the circuit court for a writ ofcertiorari to the justice of the peace who tried the cause, requiring him to comply with section 89, Code of 1906, section 71, Hemingway's Code, by certifying a "copy of his record of the case, with all the original papers in the case, as in appeals in civil cases."

It will be observed that the certificate of the justice of the peace certifying the record up to the circuit court refers to the papers sent up in the singular. Instead of stating in the certificate that the above and foregoing "papers" were sent up, he certified "that the above and foregoing `paper' was sent up." Another defect in the record certified up by the justice of the peace was that he failed to include in the record a copy of his docket entries in the case.

It is argued by appellant that because of these defects the circuit court failed to acquire jurisdiction of the case; that the appeal proceedings were so defective as to be void, and therefore the circuit court was without jurisdiction.

The fundamentals of jurisdiction of the circuit court were the affidavit charging the offense, the judgment of the court, and appeal bond. These were sent up. It is true the certificate attached thereto was defective in that it used the singular "paper," instead of the plural "papers," as it should have done. But construing the entire language of the certificate, it becomes plain that the justice of the peace intended the plural "papers" instead of the singular "paper." And we hold that the failure, although it was required by the statute, to certify up with the record, as a part thereof, the docket entries of the justice of the peace, was not essential to the jurisdiction of the circuit court. This was a mere defect which was perfectly harmless to appellant and did not deprive the circuit court of jurisdiction.

The sheriff of Clay county searched appellant's residence and found the intoxicating liquor in her possession, for the possession of which she was convicted. He had a search warrant as authority for his search. Appellant contends that the search warrant was void because the affidavit on which it was based, and the search warrant itself, violated section 23 of the Constitution, which provides, among other things, that "no warrant shall be issued without . . . specially designating the place to be searched and the person or thing to be seized;" that the affidavit and warrant were too general and indefinite in the description of the premises to be searched; that they failed to specifically point out the place to be searched as required by the Constitution.

In both the affidavit and the warrant the premises sought to be searched is described as follows: "The dwelling house, outhouses on the premises or in automobiles or other vehicles, used or occupied . . . by Roberta Borders . . . located at or near Pheba in said county."

The caption to the affidavit is: "State of Mississippi, County of Clay." The Caption to the search warrant is: "State of Mississippi, County of Clay. To any Lawful Officer of Clay County."

The search was made of appellant's home. The premises to be searched, among others, as will be seen from both the affidavit and the search warrant, was the dwelling house of appellant near Pheba, in Clay county. Any description in the affidavit for a search warrant and in the search warrant issued thereon, that points with reasonable certainty to the premises to be searched, is sufficient. Any description of the place or thing to be searched that will enable the officer making the search with reasonable certainty to locate such place or thing is sufficient.Loeb v. State, 133 Miss. 883, 98 So. 449; Bradley v.State, 134 Miss. 20, 98 So. 458; Matthews v. State,134 Miss. 807, 100 So. 18. We think the affidavit and search warrant sufficiently described the place searched.

Mr. Cottrell, the sheriff of Clay county, who made the affidavit for the search warrant, and who was introduced as a witness for the state, testified on cross-examination that he was not certain that the oath required by law was administered to him by the officer taking the affidavit. On being urged to state his recollection about the matter, he finally said that he did not remember that the oath was taken; in fact, his best recollection was that it was not. The jurat to the affidavit is in due form and recites that it was sworn and subscribed to before the officer taking it, by the affiant Cottrel, on the day it was made, the 9th day of August, 1924. It is argued, and it is true, that the required oath to the affidavit for a search warrant is indispensable, and a search warrant issued without it is void. The presumption of the truth of the recitals in official records as well as the presumption of regularity in official acts cannot be overturned by uncertain evidence. To overturn such records and acts, the evidence must be positive and convincing. The evidence of the witness Cottrell fails to meet this requirement. He may have taken the required oath and forgotten it. He expressed great uncertainty. His evidence meant that although he did not believe he had taken the oath, still he was not certain about it. Courts will not permit the setting aside of solemn official records on such evidence. They furnish their own proof. Official records are proof themselves when properly authenticated. The jurat to the affidavit for the search warrant therefore is to be taken as true because the evidence is insufficient to overturn it.

Appellant complains at the action of the court in not granting the only refused instruction requested by appellant. By this instruction appellant sought to have the court charge the jury that even though the liquor in question was left in appellant's closet by another person with appellant's knowledge and consent, still she was not guilty unless she exercised dominion or control over the liquor. The refusal of that instruction was not harmful to appellant's cause. Appellant got from the court seven instructions which presented to the jury every conceivable phase of her defense, including the one sought to be embodied in her refused instruction. The jury were told in the given instructions that they could not convict appellant unless she actually and knowingly had possession of the liquor, and that if the evidence showed that the liquor was placed in her closet by another, who had been given the right to use such closet, they should acquit the defendant.

Appellant argues that she was entitled to a directed verdict because the evidence was insufficient to sustain the judgment. We do not think there is any merit in this position. When the liquor was found in appellant's closet, she insisted that it was water, doubtless in the hope that the officer who found it would not examine it further. After it was found to be intoxicating liquor, she said to the officer that it belonged to another who had put it in her closet with her consent, but that she did not know what it was; that the person who put it in there simply asked her permission to put a package in her closet. We are of the opinion, however, that there was enough evidence to go to the jury, taking her conduct and what she said into consideration, to show that she knew that the liquor was in her closet and knew what it was and that she had it in her possession and under her control.

Affirmed.

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Addendum

ON SUGGESTION OF ERROR. On the suggestion of error filed in this case it is conceded that the rules of law therein announced are proper, but it is contended they are not applicable to the case because the state witness, Cottrell, in testifying as to whether the affidavit was actually sworn to or not, said that he did not remember positively as to the administration of the oath and as to what he testified in the court below, and that the defendant offered other evidence to show what Mr. Cottrell testified in the justice court, and that such other witness stated that Mr. Cottrell stated that he was not sworn, and that the defendant tendered other proof by other witnesses also to show that Mr. Cottrell testified in the justice court that he was not sworn at the time the search warrant was issued, and objection was interposed to such additional testimony and sustained by the court on the theory that the court considered the proof established that he had so sworn in the justice court.

The testimony of the witness as to what Mr. Cottrell swore in the justice court does not tend to establish the fact that the affidavit was not sworn to, it going only to his credibility and veracity. There was no effort to prove by witnesses present at the time the affidavit for a search warrant was applied for and issued to show the facts that there happened or what was there done.

The suggestion of error is therefore overruled.

Overruled