Porter v. State

100 So. 377 | Miss. | 1924

Cook, J.,

delivered the opinion of the court.

The appellant, Ed Porter, was convicted in the circuit court of Jones county on a charge of having intoxicating liquor in his possession, and from the conviction and sentence he prosecuted this appeal.

The entire evidence upon which this conviction rests, which was introduced over the objections of appellant, was obtained by means of a search of appellant’s wagon under a search warrant issued by a deputy clerk of the city of Laurel. The affidavit on which the search warrant was based was made before a deputy city clerk, and it recites that the affiant — “has reason to believe that intoxicating liquors are being kept or offered for sale or barter, or sold or bartered, or that they are being kept or given away in violation of law in the building described as wagon and occupants and the room described as occupied by Bud Porter in the city of Laurel, Jones county, Mississippi,” etc.

The several assignments of error challenge the validity of this search warrant; the first contention of the appellant being that the search and seizure in question was illegal, because the affidavit on which the search warrant was based was void, in that it failed to aver that affiant “does believe,” etc., as provided in chapter 115, Laws of 1908 (section 2088, Hemingway’s Code). In the cases of Turner v. State, 98 So. 240, and State v. Watson, 98 So. 241, it was held that, under chapter 315, Laws of 1908 (section 2088, Hemingway’s Code), an affidavit for a search warrant, which omits the phrase ‘ ‘ does believe ’ ’ and alleges only that the affiant has good reason to believe, is fatally defective, and that a search warrant issued upon such defective affidavit is illegal.

The affidavit and search warrant were also void, for the reason that the affidavit was made before, and the search warrant issued by, a deputy city clerk. This precise question was decided in the case of City of Jackson v. John Howard, 99 So. 497, in which it was held that, under section 20*88, Hemingway’s Code (Laws of 1908, chapter 115), authorizing the issuance of a search warrant by a justice of the peace, it is only the judge or magistrate before whom a proper affidavit is filed who, after the exercise of his own judgment as to the credibility of the affiant and the sufficiency of the affidavit, may issue a search warrant, and that section 3400, Code of 1906 (section 5930, Hemingway’s Code), authorizing the clerk of a municipality to issue process from the municipal court, does not authorize such clerk to issue a search warrant.

It is unnecessary to notice the other criticisms of the affidavit. The affidavit and search warrant being’ void for the reasons stated, the search and seizure were illegal, and the evidence secured thereby should have been excluded. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377; Owens v. State (Miss.), 98 So. 235.

Reversed and remanded.