Falkner v. State

98 So. 345 | Miss. | 1923

Ethridge, J.,

delivered the opinion of the court.

Appellant was indicted for unlawfully having intoxicating liquors in his possession and was convicted on testimony procured through a search warrant issued by the mayor of the town of Carthage, returnable before a justice of the peace of the district in which the defendant lived.

It is insisted that the mayor did not have authority to issue a warrant to search the premises beyond the corporate limits of the town of which he was mayor.

Section 2088, Hemingway’s Code (Laws 1908, chapter 115), provides as follows:

“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, or sold or bartered, or that they are being kept to be given away, or are being given away to induce trade, 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, or if in a municipality, t'o the sheriff, or any constable or marshal, or policeman therein, commanding him to enter the room or building designated, by breaking, if necessary, and search for and seize such liquors, and all vessels or appliances used in connection therewith, and hold the same until disposed of according to law. The writ 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 liquors.”

Under the laws of this state a mayor is ex officio justice of the peace of the territory embraced in the corporate limits of the municipality, and his acts as justice of the peace are valid. Poplarville Sawmill Co. v. Marx, 117 Miss. 10, 77 So. 815.

Under section 2223, Hemingway’s Code (section 2724, Code of 1906), 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. ’ ’

Section 167 of the state Constitution reads as follows: “All civil officers shall be conservators of the peace, and shall be by law vebted with ample power as such.”.

This court has held that a mayor could not try cases beyond the territorial limits of the municipality constituting his district, but these decisions have no reference to the mere issuance of writs and warrants in his capacity as conservator of the peace. The mayor had authority to issue the search warrant and make it returnable before the proper justice of the peace, and the evidence obtained by a lawful search warrant so issued was admissible, and it was sufficient to sustain a conviction. It is true that the stepson of the appellant, a boy, was in the house and occupied a room therein, and the liquor was found in another room during the absence of the appellant, when the search was made, and appellant testified that the liquor which was found did not belong to him and that he had no knowledge of its being on his premises. Nevertheless, the proof shows that part of the liquor was found in his pants pocket in a small bottle, and another bottle was found where his pants were located. In addition to this, three barrels of mash were found on the premises one hundred fifty or two hundred yards from the residence and a well-defined trail from the barn of appellant . to the place where the barrels of mash were. Taking all of the facts together, there were ample facts to warrant the jury in finding the appellant guilty.

Instruction No. 1 for the state charged the jury: “That .if the jury believe from the evidence in this case beyond a reasonable doubt that the defendant did have in his possession or under his control intoxicating liquor in any amount about the time charged in the affidavit in district No. 2 of Leake county, then it is the sworn duty of the jury to return the following vprdict, ‘We, the jury, find the defendant guilty as charged. ’ ’ ’

This instruction leave's out the word ‘ ‘ unlawful, ’ ’ which word should have been used. Certain intoxicating liquors may be lawfully possessed under certain conditions contained in chapter 189, Laws of 1918, and it is therefore necessary and proper to use the word “unlawful” in charging the jury as to the elements of the offense. However, this error is not reversible error in the present case, for the reason that the liquor here involved found in the possession of the appellant is not of the kind that maybe lawfully possessed. There is no provision in the law authorizing any person except officers seizing illegal liquors to have whisky in their possession, and there was no suggestion in the evidence anywhere of any idea of lawfulness of the possession. There is nothing to suggest that it might have been lawful at all. On the contrary, the appellant totally denied that it was his whisky and disclaimed knowledge of its being on his premises.

The other assignments of error are without warrant, and the cause is affirmed.

Affirmed.