Crosby v. State

110 So. 122 | Miss. | 1926

^* Corpus Juris-Cyc References: Intoxicating Liquors, 33CJ, p. 682, n. 5. Searches and Seizures, 35Cyc, p. 1266, n. 16. Lloyd Crosby appeals from a conviction on a charge of having intoxicating liquor in his possession.

The main point presented for reversal is that there is a material variance between the affidavit and the search warrant used by the officers in finding the liquor, with reference to the designation of the place to be searched. The liquor found by the search of the officers was introduced in evidence over the objection of the appellant, and if the search warrant was void because of a variance between it and the affidavit, the judgment of the lower court must be reversed.

We have examined the affidavit and search warrant in question, and we find there is a fatal variance between the two, in that the affidavit does not designate the "tenant house and tenant's smokehouse," where the liquor was found.

It is a well settled rule in this state that a search warrant must conform to the affidavit upon which it is issued; otherwise the warrant is void. It follows that the search in this case was unlawful because the warrant was void, and therefore the testimony secured by the search was incompetent and the court erred in admitting it.

For the reason given, the judgment of the lower court is reversed and the case remanded.

Reversed and remanded.