Buckley v. StateBuckley v. State
- Reporters:
- , ,
- Before:
- McG-oweN
The appellant, George Buckley, was indicted ón, and convicted of, a charge of possessing intoxicating liquor. The evidence in the case, tending t‘o *811 show the guilt of the appellant, was procured by virtue of a sеarch warrant, which is alleged to he void. Uрon a search of the appellant’s premises, the sheriff found in a corncrib therеon a five-gallon demijohn with some three оr four gallons of whisky in it. • This corncrib was locked, the key of which was in the appellant’s pоssession. The defendant denied that the whisky was his.
Pretermitting other questions involved herein, this case must he reversed, for the reason that the search warrant was based upon an affidavit dated November 20, 1926, while the warrant thereоn was issued on the 20th day of November, 1927, but made returnable on the 27th day of August, 1926, and the return of the shеriff on the warrant disclosed execution оn the 22d day of November, 1926. In any event, the warrant was made returnable to an impossible dаte.
In Bufkin v. State, 134 Miss. 1, 98 So. 452, and Taylor v. State, 137 Miss. 217, 102 So. 267, this court held that a date must be fixed within a rеasonable time after the issuance óf the warrant for its return, and that a warrant must be exеcuted during the interim between the date of the issuance of the warrant and the return datе thereof. These cases were deсided in construction of, and with reference to, section 2088, Hemingway’s Code 1917 (chapter 115, Laws of 1908), which section, since the decisiоns supra have been rendered, has been amended by section 2238, Hemingway’s 1927 Code (chaptеr 244, Laws of 1924),‘the applicable part оf which being in these words:
“The writ shall be returnable instanter or on a day stated аnd a copy shall be served on the ownеr or person in possession if such persоn be present or readily found. ’ ’
In the case of Powell v. State, 146 Miss. 677, 112 So. 738, this court held that evidence procured by a searсh warrant with no return day thereon was inadmissible undеr section 2088, Hemingway’s 1917 Code, as amended by сhapter 244, section 1, Laws of 1924, in which case the search warrant referred to was returnable to a blank date. *812 We conclude, therefore, that a search warrant mаde returnable to a past date, an impossible date, is equivalent to making it returnable to a blank date, and, consequently, is void. The evidence procured by virtue of the search made under this void warrant was incompetent and its admission fatal to the state’s case.
Reversed and remanded.