Miller v. State

93 So. 2 | Miss. | 1922

Sykes, P. J.,

delivered the opinion of the court.

These appellants were indicted and convicted in the circuit court of the charge of unlawfully manufacturing intoxicating liquors.

The uncontradicted testimony in the case shows that several deputy sheriffs Avent to the home of the defendants, and there made a search of it and found a still used in manufacturing whisky. They also found what is commonly called mash’and probably a little whisky. At the time of this search and seizure one of the defendants was at home, but he hid from the officers during their search. The other defendant Avas in the field. He later came to the house, and Avhen confronted with this evidence stated to the officers that they had caught him. The officers then prepared to arrest the entire family, when the other defendant stated that he was the one who was operating the still.

Prior to this search and seizure, one of these deputies had obtained from a justice of the peace a search warrant. This warrant, however, failed to specify the name of the person or persons to be seized and the place to be searchéd. After the search and seizure, the name of the persons and the place to be searched were both filled in by some one, probably one of the deputies.

The defendants did not consent to a search of their home and premises. Proper objections were interposed during the trial of the cause to the testimony of the officers about the still and what they found. At the conclusion of all of the testimony the defendants requested that the jury be instructed to find them not guilty, which motion was overruled by the court.

This instruction should have been granted. Before this warrant can be issued, section 28 of the Constitution must be complied with, and this section especially provides that:

“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.”

A blank Avarrant or a blank affidavit amounts to nothing. This question is ably discussed in the opinion of Justice Anderson in the case of Tucker v. State (Miss.), 90 So. 845. We can add nothing to this discussion.

The state contends that, even though these officers had no authority to make this search and seizure, yet the statements of the defendants above set out are confessions of their guilt. This court has repeatedly held that the corpus delicti must be proven aliunde a confession. A confession is not proof of the offense. The latest opinion of this court upon this question is that of Williams v. State, 92 So. 584. This rule is thus stated in that case:

“This court has held many times, and the rule is probably universal in the United States, that the body of the crime charged against a defendant cannot be proven alone by his own confession of guilt” — citing the authorities.

There was no competent testimony of the guilt of these defendants, and the court should have granted the instruction to find them not guilty.

The judgment of the court is. reversed, and the defendants discharged.

Reversed and appellants discharged.