Morton v. State

101 So. 379 | Miss. | 1924

Holden, J.,

delivered the opinion of the court.

Walter Morton appeals from conviction upon a charge of having more than one quart of liquor in his possession.

The main point urged by the appellant for reversal is that the search and seizure of the'liquor was without a lawful search warrant, and that the testimony of the * officers making the search and seizure was inadmissible. It is contended that the officers had a void search warrant, because it did not conform to the affidavit, nor authorize the search of any particular building or place, as described in the affidavit upon which the warrant was issued, and we think the position is well taken, and we find no difficulty in ‘saying, from the record, that the search warrant was void.

But the state contends that, even though the search warrant was void, still the conviction must stand, because the appellant voluntarily consented and invited the search, and thereby waived the requirement of a search warrant; and, second, that the conviction must be affirmed, because the appellant confessed, as shown by the testimony, to having the liquor in his possession, and that therefore the confession or admission of the possession of the liquor by appellant was sufficient to sustain the conviction, even with the officer’s testimony excluded.

We are unable to agree with the positions taken by the state, for the reason that, first, the officers told the appellant that they’“had a search warrant to search his place for liquor,” whereupon the appellant said, “All ‘right, white folks; search my house whenever you get ready.” We do not think, under these circumstances, the appellant voluntarily consented to the search of his house, because he believed the officers had a lawful search warrant to search his premises, as they had stated to him. Therefore the search was unlawful, not by voluntary consent, and the testimony of the officers, for that reason, was inadmissible. The question is settled in the case of State v. Watson (Miss.), 98 So. 241; Smith v. State, 133 Miss. 730, 98 So. 344.

On the second proposition, that the confession of appellant to having the liquor in his possession was alone ample for conviction, we do not think the confession was sufficient to sustain the conviction, because the corpus delicti must first be proved, and when the testimony of the officers making the search is eliminated there is no proof left in the case tb support the body of the crime, and therefore the confession was inadmissible.

'In view of these conclusions, we find that the judgment of the lower court must be reversed, and the cause remanded.

Reversed and remanded.

Anderson, J., takes no part.

Headnotes 1. Searches and Seizures, 35 Cyc, p. 1267 (1926 Anno); 2. Intoxicating Liquors, 331 C. J., section 376 (1926 Anno); 3. Criminal Law, 16 C. J., section 1110; 4. Criminal Law, 16 C. J., section 1468 (1926 Anno); 5. Criminal Law, 16 C. J., section 1468 (1926 Anno); 6. Criminal Law, 17 C. J., section 3662.