July 5, 1922. The opinion of the Court was delivered by This is an indictment for manufacturing, unlawfully receiving, and unlawfully having in possession alcoholic liquors.
There is only one point in the case. It is claimed by appellant that the search warrant under which the search and seizure were made was illegal, in that the Magistrate did not actually swear the affiant. The warrant was issued on the affidavit of one Peavy. The Magistrate testified:
"A. He said, `I want to make this affidavit before you,' and he signed it. Q. And you signed your name? A. Yes, sir. Q. But you didn't actually swear him? A. He knew he was swearing to it. Q. Did you deliver to him the oath? A. No, sir; he did not hold up his right hand and swear. Q. And you didn't swear him? A. Only by him saying he wanted to make the affidavit. Q. You didn't swear him, and he didn't make the oath before you? A. Only as I explained to you."
"By Mr. McLeod: Did or not Mr. Peavy know he was taking an oath? A. He did, sir."
That was sufficient.
The exceptions are overruled, and the judgment affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICES COTHRAN and MARION concur. *Page 156
MR. JUSTICE COTHRAN: I do not think that the affidavit was properly sworn to, but that the objection to the admission of the search warrant upon that ground was waived.