Boyd v. StateBoyd v. State
delivered the opinion of the court.
Appellant was indicted and convicted in the circuit court of Smith county of the crime of pоssessing intoxicating liquor, and fined in the sum of five hundred dollars and sentenced to serve ninety days in jail. From thаt judgment he prosecutes this appeal.
Intоxicating liquor, twenty-one pints, was found near the home of appellant by the sheriff of Smith county аnd two of his deputies as the result of a searсh of appellant’s premises. The evidence secured as the result of the search was essential to prove appellant’s guilt; without it the state had no case against him. Appellant objected to the introduction of such еvidence on the ground that the search was mаde without affidavit and search warrant, and, if made with a search warrant upon an affidavit, neither had been produced by the state. Thereupon the state undertook to prove that an affidavit had been made and a -search warrant issued, which search warrant was in the hands of thе sheriff and his deputies when the search was made, and was served on appellant, and that both the affidavit and the warrant had been lost and could not be found.
The evidence was wholly insufficient to show the loss of the affidavit and search wаrrant. The proper custodian was not introduced as a witness to show that diligent search had been made for them where they were kept, and that they could not be found. Nlor did any other witness who testified show that he had made diligent search fоr, and had been unable to find, them.
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There was no sort of evidence tending to show the contents of the affidavit and the warrant, and whether or not thеy complied with the law. It is not every affidavit and wаrrant that will authorize a search. The affidavit аnd the warrant must conform substantially to the requiremеnts of the statute. To authorize the admission of еvidence obtained by the search of a person’s premises the affidavit and search wаrrant must be produced before the evidence is received if objection is made to the evidence upon that ground. If the affidavit and search warrant have been lost, the proоf must show not only, the loss but also substantially their contеnts. Pickle v. State,
There was an effort made by thе state to show that appellant did not objеct to the search. Taking the evidence most strongly for the state, it means that appellant neither objected nor consented. Under the authority of Smith v. State,
Reversed and remanded.