Strangi v. State

98 So. 340 | Miss. | 1923

Lead Opinion

Holden, J.,

delivered the opinion of the court.

This is an appeal from a conviction on a charge of having intoxicating liquor in possession.

The appellant urges reversal on several grounds, but we shall notice only one, and that is whether or not the testimony supporting the conviction was admissible. It is contended the testimony was secured by search, without obtaining a warrant to search the premises upon which the liquor was found. The testimony was duly objected to by the defendant at the trial.

The warrant used by the officers -authorized the search of ‘ ‘ a certain room in a building occupied by T. Strangi as store and residence, of Mississippi City, Harrison county, Mississippi.” The officers failed to find any liquor in the “room in the building occupied by T. Strangi as store and residence,” whereupon they went to another and different building about one hundred feet away from the storehouse and there found the intoxicating liquor involved in' this case.

We do not think the search warrant authorized the search of any buildings except the one named therein, to-wit, “a certain room in a building occupied by T. Strangi as store and residence.” The warrant did not designate the premises and any other buildings thereon, but specifically authorized the search of the particular room occupied by the appellant, under section 2088, Hemingway’s Code.

Therefore the search of a different and separate building one hundred feet away, and the seizure of the intoxicating liquor therein, was not a lawful search, and the evidence thus secured was inadmissible against the accused. Section 23, Constitution of 1890; Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377.

The judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.

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Concurrence Opinion

Smith, C. J.

(specially concurring).

I concur in holding the evidence inadmissible, but solely on the authority of Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, which case I think was erroneously decided and should be overruled, for the reasons set forth by me in a dissenting opinion in Owens v. State, 98 So. 233, this day decided.