City of Jackson v. Howard

99 So. 497 | Miss. | 1924

Cook, J.,

delivered the opinion of the court.

The appellee, John Howard, was convicted in the police court of Jackson, Miss., on an affidavit charging him with having intoxicating liquor in his possession, in violation of a city ordinance, and appealed to the circuit court. At the trial in the circuit court he objected to the introduction of the evidence against him on the ground that the search warrant under which his house had been searched and certain liquor seized was illegal and void, and consequently the evidence so secured was inadmissible against him. The court sustained the objection to this evidence and granted the appellee an instruction directing a verdict of not guilty, and from the judgment entered in pursuance of this instruction, the city prosecuted this appeal.

The testimony which was offered 'against the appellee, and excluded by the court, was secured by means of a search warrant issued by a deputy city clerk, the affidavit and search warrant being signed, “J. H. Pennix, Police Justice and Ex Officio Justice of the Peace, by L. E. Suggs, Deputy Clerk,” and the question presented for decision is whether or not a valid search warrant may be issued by a city clerk.

Section 23 of the state Constitution reads as follows:

“The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized. ’ ’

Section 2088, Hemingway’s Code (Laws of 1908, c. 115), provides that:

“Upon the affidavit of any credible person that he has reason to believe and does believe that any intoxicating liquors, . . . are being kept or offered for sale or barter, ... 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,” etc.

In the case of Loeb v. State (Miss.), 98 So. 449, in considering the constitutionality of this Code section which authorizes the issuance of search warrants upon the affidavit of any credible person, this court held that the finding of probable cause for the issuance of a search warrant was a judicial question, and that this statute should be given a construction that will enable the justice of the peace to pass judicially upon the credibility of the person making the affidavit, the court there saying that — “This view will harmonize with the constitutional purpose of securing the peace and enjoyment of persons, homes, and property from unreasonable seizure or search, and to so construe the statute it will be clearly constitutional. ’ ’

Under section 3400, Code of 1906 (section 5930, Hemingway’s Code), the'clerk of a municipality has authority to issue process from the municipal or police court, but this is a mere ministerial duty or power, and does not authorize such clerk to exercise the judicial function involved in the determination of the question of existence of probable cause for the issuance of a search warrant. Section 2088, Hemingway’s Code, authorizes the issuance of search warrants by justices of the peace, and it is only the judge or magistrate before whom the proper affidavit is filed who, after the exercise of his own judgment as to the credibility of the affiant and the sufficiency of the affidavit, may issue a search warrant. In the case at bar the affidavit for a search warrant was made before a deputy city clerk, and the search warrant issued by such deputy, and for that reason was invalid, and consequently the evidence secured thereby was properly excluded. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377; Owens v. State (Miss.), 98 So. 233; Smith v. State (Miss.), 98 So. 344.

Affirmed.