Bufkin v. State

98 So. 452 | Miss. | 1923

Cook, J.,

delivered the opinion of the court.

The appellant, D. P. Bufkin, was charged by affidavit in the justice court of district No. 2, of Forrest county, with having* intoxicating liquor in his possession. The affidavit charged before amendment, that defendant “did violate the law by having' intoxicating liquor in his possession against the peace and dignity of the state of Mississippi.” Before the trial, and over the objection of the defendant, the justice of the peace permitted an amendment to the affidavit so as to charge that the defendant “did violate the law by having more than one quart intoxicating liquor in his possession, against the peace and dignity of the state of Mississippi.” The defendant was convicted in the justice court, appealed to the circuit court, and was again convicted, and from this conviction he prosecuted this appeal.

The facts shown by the testimony for the state are substantially as follows: The sheriff, in company with three of his deputies, having first procured a search warrant, went to the residence of the appellant for the purpose of searching for intoxicating liquor, and upon arriving there two of the deputies went to the rear of the house while the sheriff went to the front door and knocked. The appellant came out, and the sheriff told him he had a warrant to search his house and premises, whereupon the appellant told him that was all right, but he would like to have time to notify his wife before they entered. He thereupon returned to his house while the sheriff waited on the front porch. The appellant did not return, and after waiting some time the sheriff entered the house and found that the appellant had poured a quantity of whisky through a funnel and out under the house. The appellant still had a quart jar of whisky in his hand when the sheriff entered. It further appears from the testimony of the two officers who had gone to the rear of the house that when the appellant requested that he he permitted to advise his wife of the presence of the officers and left the sheriff at the front door, he went through the house and out the back door, where he threw several jars of whisky over a fence. Some of these jars were broken, but the officers who were standing near by when he threw this whisky away recovered two quart jars which were filled with whisky and not broken. The appellant himself picked up one of the quart jars, and one of the officers the other, and it was when they went back into the house that the sheriff met the appellant with this quart of whisky in his hand.

When the state closed its testimony, the appellant made a motion to exclude the evidence for the reason that it had been obtained by means of an illegal search, and in violation of sections 23 and 26 of the Constitution. This motion was overruled, and the appellant did not introduce any testimony.

After having heard-all the testimony and received the instructions of the court, the jury retired for the consideration of a verdict, and presently returned into open court with the verdict. Before accepting the verdict, the court, in the presence of the defendant and his counsel, announced that the defendant had not been arraigned, whereupon in open court, in the presence of the jury and counsel for the defendant, and over the objection of the defendant, the court arraigned him on the affidavit, and the defendant entered a plea of not guilty. The jury was then directed to return to their consultation room for further consideration of the case, and thereafter a verdict of conviction was returned, and the first assignment of error is' based upon the action of the court in so arraigning the defendant.

The record discloses that, without objection to the failure to arraign him, the appellant proceeded to trial on the charge laid in the affidavit. He was present in person and by counsel vigorously contesting every step of the trial up to the time when the court ordered an arraignment. At the conclusion of the testimony for the state a motion was made to exclude all the evidence on the theory that the search and seizure were unlawful and that the evidence had been unlawfully obtained, but no objection was then made to the failure to arraign him. A defendant may waive arraignment, either expressly or impliedly, by proceeding to trial without objection, and one who has by his assent and conduct thus impliedly joined issue with the state on an affidavit or indictment, cannot, by objection to a later arraignment, avoid a conviction. This question was settled adversely to appellant’s contention in the case of Scruggs v. State, 130 Miss. 49, 93 So. 482, the court there saying that when a defendant — “expressly or impliedly joins issue with the state on the indictment and proceeds to trial without arraignment, and thereby hears the evidence and secures the chance of an acquittal by the jury, he cannot complain of the failure to arraign, because he waived it in the beginning of the trial.”

The appellant next contends that, since it is not unlawful to possess homemade wine for domestic or household uses only, the affidavit charged no offense, because it does not allege that the defendant unlawfully had intoxicating liquor in his possession. The charge in the affidavit that the defendant “did violate the law” by having in his possession more than one quart of intoxicating liquors is equivalent to charging that the act was done unlawfully, and we think the affidavit sufficiently charges the offense.

Appellant next complains of the only instruction for the state for the reason that it omits the word “unlawfully.” This instruction charged the jury that the defendant should be convicted if they “believed from the testimony in this case beyond a' reasonable doubt that the defendant had in his possession more than one quart of intoxicating liquors as alleged in the affidavit.” The only testimony before the jury was that the defendant had in his possession a large quantity of whisky. The possession of whisky under any circumstances is unlawful, and, in view of the testimony before the jury in this case, the omission of the word “unlawful” in this instruction is not . reversible error.

The fourth assignment of error is that the affidavit, which originally simply charged the possession of intoxicating liquor, was amended in the justice court so as to charge the possession of more than one quart of intoxicating liquor. The record discloses that this amendment was made before the case was tried, and on timely motion made by the county attorney. The substance of the offense in either case is the same, and it is manifest that the proof, as well as the defense, must be the same. The amendment only affects the punishment which may be imposed after conviction, and the court committed no error in permitting this amendment.

The next assignment of error charges that the evidence was obtained under and by virtue of void search warrant proceedings; the contention being that the affidavit and search warrant were illegal because, first, the warrant was issued by a justice of the peace of district No. 3 of the county to search premises situated in district No. 2 of the county; second, because the search warrant was returnable at an earlier day than five days after its issuance; third, because the return on the search warrant showed that the liquors seized thereunder were seized on February 24,1923, whereas the affidavit charged, and the evidence showed, that the liquors which were seized and which were admitted on the trial, were possessed on Februar'y 23, 1923; and fourth, that the affidavit upon which the search warrant is based is void for the reason that it is made upon information and belief, and no hearing was had by the justice of the peace to determine whether probable cause existed for the issuance of the warrant, and no facts were set forth in the affidavit showing upon what the affiant based his information and belief that intoxicating liquors were being kept by appellant so that the magistrate might determine therefrom whether probable cause existed for the issuance of the writ.

There is no merit in the contention that the search warrant was illegal because it was issued by a justice of the peace of one district for the search of premises located in another district. Section 167 of the Constitution provides that — “All civil officers shall be conservators of the peace, and shall be by law vested with ample power as such. ’ ’

Under section 2724, Code of 1906 (section 2223, Hemingway’s Code), it is provided: “The jurisdiction of every justice of the peace shall be coextensive with his county, and he may issue any process in matters within his jurisdiction, to be executed in any part of his county.”

Under section 2088, Hemingway’s Code (Laws of 1908, chapter 115), it is provided: “Upon the affidavit of any credible person that he has reason to believe and does believe that any intoxicating liquors, as described in this-act, are being kept or offered for sale or barter, . . . in any room or building designated in the affidavit, it shall be the duty of any justice of the peace of the county in which the place is situated to issue a search warrant, directed to the sheriff or any constable of the county, . . . commanding him to enter the -room or building designated, by breaking, if necessary, and search for and seize such liquors, .. . . and hold the same until disposed of according to law.”

As conservators of the peace, with jurisdiction coextensive with the county by the express provision of this statute, it is made the duty of any justice of the peace of the county to issue the search warrant when a proper affidavit therefor is lodged with him, and under this section a justice of the peace may issue a warrant to be served in any part of his county.

The provision of the statute with reference to the return of the search warrant provides (section 2088) that it “shall be returnable at a time to be stated therein, not earlier than, five days, and a copy of the writ shall be served on the owner or claimant person in possession of such liquor.”

The purpose of the statute in requiring service of the warrant on the owner of the liquor, and that it be made returnable on a day certain, not earlier than five days from its issuance, was twofold — first, to afford the owner notice of the legality of the search so that he would not resist its being done; and, second, to afford him a remedy for the recovery of the liquors seized if he should be entitled thereto. The fact that the return day fixed in this warrant was earlier than five days from its issuance could have nothing to do with the first purpose mentioned. It only had to do with the remedy of the person found in possession of the liquors for their recovery, and, in view of the fact that under the provision of chapter 189, Laws of 1918, no property rights of any kind exist in the liquors here involved, and the possession thereof under any circumstances by one who is not an officer is illegal, no right of the appellant was infringed by reason of the fact that the return day fixed in the warrant was earlier than five days from its issuance.

Finally, it is argued that section 1749, Code of 1906 (Hemingway’s Code, section 2088), which provides that a search warrant for liquors kept in violation of law may be issued on “the affidavit of any credible person that he had reason to believe and does believe that any intoxicating liquors, as described in the act, are being kept or offered for sale,” etc., is violative of section 23 of the Constitution, in that it does not require a showing of probable cause as a basis for the issuance of the search warrant. In the case of State v. Quintini, 76 Miss. 498, 25 So. 365, it was held that an affidavit charging a crime made upon information and belief was probable cause, and constituted a valid charge for the arrest and trial of the person charged. In the case of Loeb v. State (No. 23468), 98 So. 449, this day decided, the question is discussed at length, and the constitutionality of the statute is upheld.

The judgment of the court below is therefore affirmed.

Affirmed.