Taylor v. State

102 So. 267 | Miss. | 1924

Cook, J.,

delivered the opinion of the court.

The appellant, Chester Taylor, was tried and convicted in the circuit court of Perry county, on a charge of having liquor in his possession, and was sentenced to pay a fine of five hundred dollars and to serve a jail sentence of thirty days, and from this judgment he prosecuted this appeal.

The testimony upon which this conviction was based was secured by means of a search of appellant’s home under a search warrant issued by a justice of the peace on January 12, 1924, and returnable the same day. The search was made four days after the return day of the warrant, under the authority of which the search was made. When the testimony as to this search, and the results thereof, was offered by the state, it was specifically objected to, but this objection was overruled', and the admission of this testimony is assigned as error; one of the contentions of the appellant being that after the return day of the warrant it became functus officio, and, consequently, that any seareh conducted thereunder was illegal, and the testimony secured thereby inadmissible.

This precise question has not been heretofore passed upon by this court. In answer to this contention the attorney-general relies upon the case of Bufkin v. State, (Miss.), 98 So. 452, in which it was held that no right of the defendant was infringed by reason of the fact that the return day fixed in the warrant was earlier than five days from its issuance, but a very different question is presented here, where, under the authority of a search warrant, the search was máde several days after the return day of the warrant. Section 2088, Hemingway’s Code, provides that a search warrant shall be returnable at a time to be stated therein, not earlier than five days, and while we have held that no right of a defendant was infringed by reason of the fact that the return day fixed in the warrant was earlier than five days from its issuance, we think there are important considerations that demand that some date, within a reasonable time after the issuance of the warrant, be fixed for its returjn, and that it should be executed within the ■ time within which it is, by its terms, a live process. We think it is necessary that some time shall be fixed in a search warrant for the return thereof, and that after that time it becomes functus officio, and cannot be executed. If the return day named in the warrant does not fix the time limit within which the warrant may be executed, and an officer may retain a warrant in his possession' until four days after its return day, and then validly execute it, he may retain it four weeks or four months, or such other time as lie may desire. We do not think that it was ever contemplated that a search warrant should be held by an officer as a weapon, to be used at his discretion.

In the case of State v. Guthrie, 90 Me. 448, 38 A. 368, the supreme court of Maine, in discussing this question, said:

“When there is named in any process, or in the law authorizing it, a time within which it is to be executed and returned, the process cannot be executed after that time, but becomes functus officio, except, perhaps, for return. ’ ’

The search conducted under the purported authority of a search warrant, which was made after the return day of the warrant, was illegal, and consequently the evidence procured by means of the search was inadmissible. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377; Owens v. State, 133 Miss. 753, 98 So. 235.

Reversed and. remanded.