100 So. 674 | Miss. | 1924
delivered the opinion of the court.
Mary Wells, the appellant, was indicted, tried, and convicted for the unlawful possession of intoxicating liquors, and from such conviction appeals. The liquor was found by means of a search warrant, and, when evidence of the officers making the search was offered, and they stated that they made the search by reason of the search warrant, the defendant objected, unless and until the search warrant and affidavit were produced, which objection was overruled. The officers stated that they had a warrant, and that it was returned to the particular court from which it was issued, and that they did not know where it was. There was no evidence at all of a search for the affidavit and warrant or that they were in fact lost, and they were not produced at the trial.
We held in Cuevas v. City of Gulfport (Miss.), 99 So. 503, that the search warrant and affidavit must be produced, where the evidence was sought to be admitted, or the absence or loss must be accounted for, or else there must be a waiver of the search warrant by the defendant at the time of the search, and reversed the conviction because the search warrant and the affidavit upon which it was issued were not produced at the trial. The facts in this case are practically the same, and this case is controlled by the Cuevas case.
The judgment will therefore be reversed, and the cause remanded.
Reversed and remanded.
