Reynolds v. State, 101 So. 485

101 So. 485 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellant was convicted of having a still in his possession and sentenced to the penitentiary for two years, under1 the provisions of chapter 211, Laws of 1922. The evidence upon which he was convicted was that of the sheriff and some deputies, who procured a search warrant to search the premises of the appellant from a justice of the peace who lived in another district from that which appellant lived in; the warrant being -returnable before the justice of the peace who issued it.' The officers went to the residence of the appellant, but did not find him there, and delivered a copy of the warrant to appellant’s wife and proceeded to make a search of the cookroom of the dwelling of appellant; the officers testifying that they found a barrel of mash by the stove and this barrel of mash contained a fifteen pound sack1 of sugar. They also found a pot and the lid which fit over the pot, and a pipe connected therewith, and a trough, all of which, when set up-, would constitute a distillery capable of making intoxicating1 liquors. The offiers also found a small quantity of moonshine whiskey. No criminal prosecution was instituted in the justice of the peace court, but the bill of indictment by the grand jury constitutes the beginning of the prosecution in this case. The first indictment returned did not negative the exceptions contained in the statute. Chapter 211, Laws of 1922. There was, however, a trial had on the first indictment and a conviction and sentence thereunder, but a motion for a new trial was filed and was taken under advisement by the circuit judge until the next term of court.

Ill the meantime, this court held that an indictment which did not negative the exceptions in this statute was void, and reversed a conviction for that reason. At the next term of the circuit court the grand jury returned a new bill of indictment against the appellant, in which-the exceptions were negatived and the defendant arraigned thereon, whereupon he filed a plea of a former conviction, setting; up- the first trial and conviction under the first indictment. At the time this plea ivas filed the motion for a new trial had not been, finally acted upon by the circuit judge, hut the circuit judge, after the filing of the plea, sustained the motion for a new trial; whereupon the district attorney entered a nolle prosequi, and the district attorney then replied to the plea of a former conviction, setting up the nullity of the former conviction, because of the defect in the indictment and the final disposition thereof by nolle prosequi, to which replication appellant demurred, which demurrer was overruled and the cause proceeded to trial under the present indictment.

We think there is no merit in the 'contention, under these facts, that the defendant had already been in jeopardy for this offense, because, under section 22 of the Constitution of 1800; there must he a conviction or acquittal on the merits, which of course, means a valid judgment. When the court set aside the former judgment it became a nullity, and when the district attorney entered a nolle prosequi with the consent of the court the former charge was removed from the proceedings.

The state, to make out its case, introduced the sheriff and his deputies, who testified to what they found in the residence of appellant, and, over the objection of the appellant, testified to finding a still outfit in the residence of the defendant. It is earnestly insisted- that this is error, because it is said that the justice of the peace did not have jurisdiction to issue a search warrant, to "run into another1 district, returnable before himself, and that consequently the search was illegal.

In Bufkin v. State (Miss.), 98 So. 452, we had this precise question presented and urged before us in a similar case. In that case the opinion does not reflect the fact clearly that the search warrant was returned before the justice who issued it, but the fact is that the justice there issued the warrant in another district and it was returnable before himself and was so returned. However, the charge there preferred was preferred before the justice of the district in which the search was made, just as here it is preferred in the circuit court by indictment. In that opinion Judge Cook, speaking for the court, said:

“As conservators of the peace, with jurisdiction coextensive with the county by the express provision of this statute, it is made the duty of any justice of the- peace of the county to issue the search warrant when a proper affidavit therefor is lodged with him, and under this section a justice of the peace may issue a warrant to be served in any part of his county. The provision of the statute with reference to the return of the search warrant provides (section 2088, Hemingway’s Code) that it shall be returnable at a time to be stated therein, not earlier than five days, and a copy of the writ shall be served on the owner or claimant person in possession of such liquor.”

“The purpose of the statute, in requiring service of the warrant on the owner of the liquor, and that it be made returnable on a day certain, not earlier than five days from its issuance, was twofold: First, to afford the owner notice of the legality of the search, so that he would not resist its being done; and, second, to afford him a remedy for the recovery of the liquor seized, if he should be entitled thereto. The fact that the return day fixed in this, warrant was earlier than five days from its issuance could have nothing to do with the first purpose mentioned. It only had to do with the remedy of the person found in possession of the liquors for their recovery, and,- in view of the fact that, tinder the provision of chapter 189, Laws of 1918, no property rights of any kind exist in the liquors here involved and the possession thereof under any circumstances by one who is not an officer is illegal, no right of the appellant was infringed, by reason of the fact that the return day fixed in the warrant was earlier than five days from its issuance. ’ ’

Under the holding of this case, we think the search was not illegal.

it is next contended that the search warrant did not authorize the search for a still or the integral parts of a still, and it was incompetent to admit the evidence of the finding of a still when the search warrant, only authorized a search for intoxicating liquors. It seems to us that the reply to this contention is that the officers were legally in the residence and saw the still there, which by law was made a crime; that is to say, it is made a crime by law to have a still, or tiny integral part thereof, except for the purposes named in the exceptions in the statute. The sheriff testified that this still had been used to manufacture intoxicating liquors and was used for that purpose exclusively. Being lawfully in the residence of appellant, and finding these contraband articles therein, it became and was the duty of the sheriff to seize them and to deal with them as provided by law. We are not concerned here with whether the officer would have authority to issue a search warrant for a still under section 2088, Hemingway’s Code (chapter 115, Laws of 1908), or under any other statute. The warrant which the sheriff did have made his entry into the house lawful, and, being lawfully there, he had a right to seize articles found which the law prohibited any person having in his possession.

It is next insisted that it is error to permit the interrogation of the sheriff as to his knowledge of stills, etc. Among the questions asked is the following:.

‘ ‘ Q. Tell the court and jury, based on your experience as an officer and your knowledge of stills, what this mash could be used for, if anything? (Objected to; overruled; (exceptions.) A. For making1 -whiskey, and nothing else.”

The witness had testified that he had four years’ experience as a revenue officer1 enforcing the federal laws against stills, and four years as district attorney of the United States for the Northern district of the state, and four years as sheriff in similar work. It is incumbent upon the state to make out a case and negative the exceptions contained in the statute, and we think the evidence along this line in the record was competent to show that the still was not used for the lawful purposes named in the exception in the state law.

It is next claimed that the court erred in refusing to permit appellant to show that his wife had'also been indicted for the same offense. We do not think that that was competent for any purpose. ‘Whether the wife was also charged with having a still and whether she was guilty or innocent of such charge has no place in this record, further than was admitted by the court, which is to say that the court admitted the wife to testify as a witness that the property seized belonged to her, and she denied any knowledge of certain parts of the prop^erty, and testified that her husband did not own any of it. The purpose of the trial is to determine whether the defendant is guilty or not, and not to show who else may be charged with the same or a similar crime.

It is urged, also, that the evidence is insufficient to convict the appellant, because the evidence shows that he was not present at the time of the search and there is no evidence that he knowingly had possession of the still. It is true the evidence shows he was away from, home at the time of the search, and that his wife claimed that the mash was slop for feeding hogs and belonged to her, and that the pot was her pot, and, not the property of the appellant. But the sheriff testifies that the mash was from three to six or seven days old; that he tasted it and knew that it was intoxicating. The evidence further shows that the appellant was at home the morning preceding the search at night, and the wife’s testimony, shows that the contents, of the mash barrel had been there for a number of days. According to her testimony, she put in and took- out each day, but never entirely emptied, the container. It is true, she says, it was not mash, but was slop gathered up from the neighbor’s- houses, but the sheriff testified to the contrary, and it was for the jury to say who was. telling the truth about it.

We think the case at bar is different on its face from the case of Williams v. State (Miss.), 98 So. 107, relied on by the appellant.

It is next insisted that it was error for the court to refuse the following instruction:

“The court instructs the jury for the defendant that, even thougii they may believe from the evidence in this case that there was a complete still in defendant’s residence, yet that of itsfelf is not sufficient to convict the defendant, unless the jury further believe from the evidence, beyond a reasonable doubt, that he knowingly owned, possessed, and controlled the same, and, if there is a reasonable doubt that he did knowingly own, control, and possess said still, then the jury should find' him not guilty. ’ ’

The defendant obtained the following instruction: “The court further instructs the jury for the defendant that in this case they cannot convict the defendant upon mere suspicion or conjecture. It makes no difference as to how suspicious the circumstances may be as to the defendant’s guilt, if the jury are not satisfied in their own minds beyond a reasonable doubt that the defendant knowingly owned, controlled, or possessed a complete still, as charged in the indictment, then the}?- should promptly find him not guilty. ’ ’

This instruction given announces the law correctly, that the ‘ ‘ defendant knowingly owned, controlled, or possessed” the still. The instructions given for the state and the defendant fairly announced the law applicable to the case, and we find no reversible error in the judgment. The case will therefore be affirmed.

Affirmed.