Lead Opinion
delivered the opinion of the court.
The appellant was indicted, tried, and convicted of manufacturing intoxicating liquors, and sentenced to the penitentiary for three years; from which judgment he appeals.
The evidence introduced against the appellant was procured by a search of the premises of the appellant under an affidavit and search warrant alleged to be faulty by the defendant. The affidavit for the search warrant reads as follows:
“¡State of Mississippi, C'onnty of Copiah.
“This clay D. T. Lowe came and personally appeared before the undersigned, a justice of the peace of the first supervisor’s district of said county, and makes oath that he has reasons to believe and does believe that intoxicating liquors are manufactured, given away, and sold in
The search warrant was addressed “To Any Lawful Officer of Copiah County,’ and recites the making of the affidavit, and commands the officer — “with such aid as shall be needful you do proceed in day or night to enter by breaking, if necessary, and diligently search the residence, premises, automobiles, and all outhouses for said liquors, and any such vessels and appliances, making known to the occupant thereof, if any, your authority for so doing,” etc.
The evidence was objected to on the trial and exceptions taken to its admission, and the only evidence was the evidence of the officers obtained by means of search made under the search and affidavit; and the evidence was found, part in an outhouse near the residence, and part in the different rooms in the dwelling, and part in the possession of the defendant.
It is contended that the search warrant is void because it is not addressed to the sheriff or constable as required by section 2088, Hemingway’s Code (chapter 115, Laws of 1908). This section, after providing for the affidavit, provides: “It shall be the duty of any justice of the peace ... to issue a search warrant, directed to the sheriff or any constable of the county, or if in a municipality, to the sheriff, or any constable or marshal, or policeman therein,” etc.
The warrant here is addressed “To Any Lawful Officer,” hut was delivered to the sheriff for execution. We do not think that addressing the warrant “To. Any Lawful Officer” vitiates it. It was delivered to and executed by the sheriff, to whom section 2088, Hemingway’s Code, authorized it to be delivered to be served. Under the statute he has full authority to execute the warrant. Section 2945, Hemingway’s Code (section 3938, Code of 1906), provides:
There seems to have been no specific motion made to quash the warrant for this defect, but, if there had been, it may have been amended and would not have avoided the writ.
It is also urged that the warrant did not have the seal thereon, nor was the absence of the seal accounted for. Counsel cite section 2919, Hemingway’s Code, Pharis v. Conner, 3 Smedes & M. 87, and Burton v. Cramer, 123 Miss. 848, 86 So. 578.
Section 2919, Hemingway’s Code (section 3912, Code of 1906), is not applicable to a proceeding before a justice of the peace, because the process before a justice of the peace is otherwise provided for, and a justice of the peace is not required to have or keep a seal, and, in fact, but few justices of the peace keep a seal at all.
It is next contended that the affidavit is insufficient to comply with section 23 of the Constitution, because the place is not sufficiently described. The language of the Constitution is:
“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.”
In Loeb v. State (Miss.), 98 So. 449, we held that the Constitution did not require such a description as would be sufficient in a deed of conveyance, but that any description that will clearly and certainly enable the officer to locate the place to be seached was sufficient. In the present case the description in the affidavit is “on the premises occupied by L. A. Matthews in district No. 5, about fourteen miles northeast of Hazlehurst, in said county and state. ’ ’ This description very probably would
In the case of Rignall v. State (Miss.), 98 So. 444, the warrant only used the term “searched the premises of Joe Rignall,” without further words of description. The court said:
“The command of the warrant in the case at bar is to search ‘the premises’ of the appellant, without describing such premises in any way or designating the county in which they are located. The word ‘premises’ has varying meanings, usually determined by the context, and when used with respect to property means land, tenements, and appurtenances, and we think a warrant merely to search the ‘premises’ of a person, without other description, and without any words of limitation as to occupancy or use, or otherwise, and without any designation of the county in which such premises are located, is entirely too broad and indefinite to meet the constitutional and statutory requirement of a specific designation of the place to be searched.”
The premises here, in the opinion of the majority of the court, are sufficiently described to enable the officer to locate the place to be searched, and also sufficiently specific and definite to enable the occupant of the premises to know the place the officer was directed to search, -so that both the officer and the citizen could tell from the papers whether the officer was at the right place and had the legal authority to make the search. In our opinion, this is what the Constitution intended the affidavit and the warrant to contain. There is some difference in the authorities in other states about the particularity of the description required under the same or similar, constitutional provisions. Some of the states hold that the premises must be described with the same
The court below held in accordance with these views, and the judgment will be affirmed.
Affirmed.
Dissenting Opinion
(dissenting).-
I am of the opinion that the search warrant here in question is void for want of a sufficient description of the place to be searched. The description of the premises to be searched is not only too indefinite to meet the constitutional requirement, but the only statute under which the warrant could have been issued is section 1749, Code of 1906 (Hemingway’s Code, section 2088), which provides only for the issuance of a warrant for the search of a “room or building designated in the affidavit.”
I am also of the opinion, however, that the evidence is admissible, notwithstanding the defects in the warrant, for the reasons set forth in my dissenting opinion in Owen v. State, 98 So. 233, but until Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, shall be overruled, I must of course adhere to its ruling that evidence obtained by a search without a lawful warrant therefor is inadmissible.