48 So. 2d 365 | Miss. | 1950
The appellants were convicted on a joint indictment drawn in two counts, charging them in the first count with unlawfully transporting liquor, and in the second count with the unlawful possession of liquor. They prosecute this appeal, assigning as error the action of the trial court in overruling their motion for a new trial, based upon the ground that the judgment of conviction is contrary to the law and the competent evidence. By agreement, the case was tried by the judge, without the intervention of a jury, and upon an agreed statement of facts. The admitted facts are as follows:
On February 20, 1949, the sheriff of Greene County, Mississippi, obtained a valid search warrant to search the home of the appellant Alford for intoxicating liquor. The sheriff, in company with his deputies, went to the home of Alford for the purpose of executing the warrant. Upon his arrival at the home of Alford, neither of the appellants was present, but the wives of both appellants were at the home. The sheriff searched the home and found a quantity of whiskey therein. He took possession of the same and left the home and premises of the appellant Alford. This occurred about 10:30 o’clock p. m. on the night of the date of the issuance of the warrant. Later that night, about 3:00 o ’clock a. m., the sheriff observed the truck of the appellant Bradley traveling along the highway in the direction of Alford’s home. Bradley was driving the truck, and Alford was riding with him. The sheriff turned the lights, of his car off and followed
The sheriff made two charges against Alford before a justice of the peace, — one for the unlawful possession of the whisky which was found in the home of Alford, and one for the unlawful possession of the whiskey which was found in the truck, and he also preferred a charge against Bradley in the justice of the peace court for the unlawful possession of the liquor which was found in the truck. Alford pleaded guilty to the charge of unlawfully possessing the liquor which was found in his home and paid the fine imposed by the court. The charge against Alford for the unlawful possession of the liquor found in the truck, and the charge against Bradley for the unlawful possession of the liquor found in the truck were dismissed by the court without prejudice. Thereafter the appellants were indicted by the grand jury for unlawfully transporting liquor and for the unlawful possession of liquor.
The appellants contend that after the search of Alford’s home and premises, and the discovery of liquor therein, and the departure of the officer therefrom, the search warrant was functus officio, and that the officer was not authorized under the warrant to return to the premises of Alford for the purpose of arresting him,
Appellants rely chiefly upon the case of Riley v. State, 204 Miss. 562, 37 So. (2d) 768, but the facts in that case are entirely different. In that case the liquor was discovered under a valid search warrant and the defendant was arrested and convicted and paid his fine, and a second search was thereafter attempted under the same warrant. This Court properly held that the second search was illegal because the writ was functus officio.
We therefore conclude that the search of Bradley’s truck was legal, and that the evidence thereby procured was admissible. It follows that the judgment of conviction must be affirmed.
Affirmed.
The above opinion is adopted as the opinion of the Court, and, for the reasons therein indicated, the case is affirmed.