98 So. 241 | Miss. | 1923
delivered tbe opinion of the court.
Alva Watson was tried and acquitted of tbe offense .of unlawfully having in bis possession more than a quart óf whisky. Prom which judgment of acquittal the state prosecutes an appeal here under section 16, Hemingway’s Code (section 40, Code of 1906), under paragraph 2 thereof, which in effect provides that tbe state may appeal from a judgment acquitting a defendant where a question of law has been decided adversely to tbe state. In such ease, however, the defendant is not subject to be retried.
The state contends that the court erred in excluding the alleged affidavit and search warrant.
The affidavit in this case alleges that the affiant “has reason to believe,” but does not say in the language of the statute that he “does believe.” For failure to further allege that affiant “does believe” that these liquors were possessed this affidavit is fatally defective. There is a material difference between having reason to believe and in fact believing. One may have good reason to believe a thing, but nevertheless not believe it. The affidavit in order to be good hiust allege both facts, viz., that affiant has good reason to believe and does believe.
Since the affidavit was insufficient, it was improper to issue a search warrant based thereon. ‘Consequently the court was correct in excluding from the consideration of the jury the affidavit and search warrant.
Since the search in this case was unlawful and all of the testimony upon which a conviction was sought was a result of this search, the motion to exclude the testimony of the state should have been sustained. The testimony of the state, in brief, was to the effect that the officers found certain vessels containing liquor in the house of the defendant. The defendant, however, testified* in his own behalf, admitted the, finding of the liquor in his house, but stated it was the property of some one else. This testimony of the defendant rendered harmless the admission of the incompetent testimony for the state. Blowe v. State, 130 Miss. 112, 93 So. 577, 24 A. L. R. 1429. The testimony for the state was that when the officers went to the home of the defendant they told him they had a search warrant, and that he said, “All right, come in.” It is contended by the state that under this testimony the defendant granted permission for the officers to search
There were certain instructions granted the defendant to the effect that before the defendant could he convicted the jury should believe that he consented to his house being searched without a search warrant. In this case these instructions were rendered improper because the defendant himself had testified to the finding of the liquor.
After the defendant himself testified in this case, the only question then that should have been submitted to the jury was whether or not he was in possession of this liquor, or whether it belonged to the other men as testified to by 'him.
Affirmed.