Turner v. State, 98 So. 240

Turner v. State

98 So. 240 | Miss. | 1923

Lead Opinion

Anderson, J.,

delivered the opinion of the court.

Appellant, Anderson Turner, was convicted in the circuit court of Humphreys county of unlawfully manufacturing intoxicating liquor and sentenced to the penitentiary for two years, from which judgment he prosecutes this appeal.

The entire evidence against appellant, except his confession, was obtained by a search of his home by a deputy sheriff of Humphreys county.

It is contended by appellant that the conviction cannot stand, because all the evidence against him, except his confession was obtained by an illegal search of his home, and therefore, under Williams v. State, 129 Miss. 469, 92 So. 584, such confession alone was insufficient to establish the corpus delicti.

The deputy sheriff obtained a search warrant from a justice of the peace of Humphreys county under section 1749, Code of 1906 (chapter 115, Laws of 1908; Hemingway’s Code, section 2088), and thereupon proceeded to search appellant’s home and found a still, ten gallons of beer,- and a small quantity of whisky. Appellant then‘voluntarily confessed to the deputy sheriff to having manufactured the whisky so found, and explained how it had been done with the different vessels and parts that constituted said still.

Appellant contends that the search and seizure in question was illegal, because the affidavit on which the search warrant was based .was void in that it failed to aver that affiant “does believe,” etc., as provided in the statute. Section 1749, Code of 1906; section 2088, Hemingway’s Code. Said statute provides, among other things, “upon the affidavit of any credible person that he has reason to believe and does believe,” etc. (italics ours), a search warrant shall issue.

*743Is the affidavit void because the phrase “does believe” is left out? It was held by this court, in Livelar v. State, 98 Miss. 330, 53 So. 681, that statutes authorizing searches and seizures must be strictly construed against the state. That case only followed the rule laid down by the courts without dissent. Holberg Mer. Co. v. State, 95 Miss. 21, 48 So. 622, 18 Ann. Cas. 819, note; State v. Peterson, 27 Wyo. 185, 194 Pac. 342, 13 A. L. R. 1284, and note 1310. The legislature saw fit to couple the two phrases together. The statute is mandatory as to what the affidavit shall contain. This is not a mere formal defect; it is substantial. The purpose of the statute is to require the person making the affidavit to purge his conscience "by stating in the affidavit, not only that he has good reason to believe the thing charged, but that he does believe it. One may have reason to believe a thing and still not believe it. The reason against its belief may be stronger than the reason in favor of it. In other words, there may be very good reasons for believing either way.

We therefore hold that the affidavit was void and the search and seizure illegal. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, and cases following that including Ned Owens v. State, 98 So. 235, this day decided.

Reversed and remanded.

Dissenting Opinion

Smith, C. J.

(dissenting).

I am of the opinion that the evidence was admissible, and that the judgment should be affirmed. My views relative thereto will be found set forth in a dissenting opinion in Owens v. State, 98 So. 235, this day decided. A confessedly guilty defendant here escapes punishment because of the erroneous rule announced in Tucker v. State, 128 Miss. 211, 90. So. 845, 24 A. L. R. 1377, which case I think should be overruled.