delivered the opinion of the court.
In this сase the appellant was indicted, tried and convicted of the possession of intoxiсating liquor, and sentenced to pay a fine of $200 and costs. The evidence upon which the сonviction was had was procured by a search of the premises of appellant. The affidavit upon which the search warrant was issued was made by A. N!. Tucker, an officer of the county, before H. H. Wallace, mayor and ex officio justice of the peace of Carthаge, Leake county, Mississippi; and recited that A. N. Tucker, who1 is known to be a credible persоn, upon his oath said that he had reason to believe, and does believe, that intoxicating liquоr is being stored, kept, owned and controlled for the purposes of sale, in violation of law; and, second, that it was being sold or offered for sale in violation of law, in the residence, outhouse, barns, cribs, stalls, smokehouse, and in the fields, yard, garden and woods near the residence оf Joe Creel in the second district of said Leake county, on section 11, township 10, range 7, in Leake county, Mississippi, more particularly described as “about one mile west of Leake county courthouse,” in violation of the laws of the state of Mississippi. It avers that this belief is .not feignеd of malice against Joe Creel, but upon credible information; whereupon affiant prayed for the issuance of a search warrant, which was issued upon the same date as the аffidavit, the 21st day of January, 1937. On the evening of that day *163 the affiant, a constable of the district, and a deputy sheriff of the county, secreted themselves in a straw field near the home of Joe Creеl, for the purpose of watching to see whether any customers entered the residencе. After a time they returned to town; and on the following night again went to the residence of the defеndant, Joe Creel, served a warrant upon him, made a search, and found two bottles of liquor; whereupon he was arrested and charges were preferred against him before the justice of the peace of the district in which he lived. He was tried, found guilty, and fined $100'; from which sentence he appealed to the Circuit Court, where he was tried anew.
Hpon being offered by the state, the testimony procured by search of the premises was objected to, principally uрon the ground that the affidavit did not recite the word “good” as descriptive of the word “reasоn,” mailing it read “has good reason to believe and does believe,” instead of “has reasоn to believe and does believe.” The appellant cites the case of State v. Watson,
The appellant sought to inquire into the sufficienсy of the officers’ reason for making the affidavit. The court
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held that since the justice of the рeace issued the warrant upon the affidavit, he had adjudged the facts to he sufficient to сonstitute probable cause; and on the trial it was held that his judgment in this regard could not be inquired into subsequent to the issuance of the writ; and we have so held. Sykes v. State,
There is a difference between search upon probable cause without affidavit and warrant, such as searching a mоtor vehicle upon probable cause and without a warrant, and a case where a justice of the peace or other officer authorized to issue a warrant adjudges the existence of probable cause by issuing a warrant upon the affidavit. "Where there is no warrant issued the question of whether there was probable cause is open to inquiry, and if the evidence upon which the officer acted in such case did not amount to probable cаuse, then the search would be illegal; but where an officer having authority to issue a warrant is chаrged with the duty of determining whether the information presented to him is sufficient to authorize such issuance, decides that it is sufficient, and issues the warrant, and evidence is found by reason of the search, then such evidence is admissible on the trial.
The judgment is therefore affirmed.
Affirmed.