Fatimo v. State

Jan 7, 1924
No. 23319
Versions:98 So. 537
134 Miss. 175
1924 Miss. LEXIS 249

Lead Opinion

Holden, J.,

delivered the opinion of the court.

*179This is an appeal from a conviction of having intoxicating fiquor in possession, and was affirmed by this court without an opinion.

The main contention of appellant is that the evidence introduced by the state upon which the conviction rests was inadmissible because obtained without a search warrant, as held in the Tucker Case, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377. The officers making the search had a warrant for the search of a “certain room in a building occupied by Nick Fatimo,” etc. No liquor was found in this room or building, but, on further search, in the back yard, under an old counter some distance from the building named in the search warrant, some intoxicating liquor was found, which was introduced in evidence at the trial. The place where the liquor was found was not only not designated in the search warrant, but it was a place used by many other people, or we may say was used by the public.

We do not decide whether or not the proof was sufficient to show the liquor found was in the possession of the appellant; but we think the search of the place where it was found was not a lawful search, because the search warrant did-not designate this place to be searched, but specifically named a different place, to-wit, the room in the building occupied by the appellant. Strangi v. State, 98 So. 340, decided December 17,1923. Therefore the evidence was inadmissible -on the trial, and we erred in our former affirmance; and for these reasons the judgment of affirmance is set aside, the judgment of the lower court is reversed, and the case remanded.

Sustained, and reversed and remanded.





Concurrence Opinion

Smith, G. J.

(specially concurring).

I concur in holding that the warrant authorized the search only of the building, but think the evidence was competent, and my views relative thereto will be found *180in my dissenting opinion in Owens v. State, 98 So. 233, not yet [officially] reported. The evidence points no more to the guilt of the appellant than it does toward the guilt of a number of other persons, and consequently is insufficient to support the verdict, for which reason I think the judgment should be reversed.