Winters v. State

107 So. 281 | Miss. | 1926

^* Corpus Juris-Cyc. References: Criminal Law, 16 C.J., p. 903, n. 61. Intoxicating Liquors, 33 C.J., p. 677, n. 21. Searches and Seizures, 35 Cyc., p. 1266, n. 13. This is an appeal from a conviction for having a still in possession. The evidence on which a conviction was had was obtained by means of a search of the appellant's premises pursuant to a warrant therefor. The affidavit on which the warrant was issued was made under chapter 244, Laws of 1924, by a deputy sheriff, who had no actual knowledge of the matters alleged in the affidavit, but made the affidavit on information and belief. The affidavit was not signed by the affiant, but the jurat of the justice of the peace before whom the affidavit was made is affixed to the affidavit, and both the justice of the peace and the affiant testified that it was sworn to by the affiant.

The appellant objected to the admission of the evidence obtained pursuant to the search warrant, for the following reasons: First, the provision of section 1, chapter 244, Laws of 1924, that a search warrant may issue "upon the affidavit of any credible person that he has reason to believe and does believe," etc., violates section 23 of the state constitution; and, second, the affidavit was not signed by the affiant. Both of these contentions have been ruled against the appellant — the first by Loeb v. State, 98 So. 449, 133 Miss. 883; the second by Husbands v. State, 62 So. 418, 105 Miss. 548.

But it is said by counsel for the appellant that the form prescribed by the affidavit by section 4 of the statute hereinbefore referred to is mandatory, and, since a blank is therein left for the affiant's signature, the affidavit is not valid, unless signed by him. There is no merit in this contention. The provisions of section 1 of the statute are mandatory (Turner v. State, 98 So. 240, 133 Miss. 738), but the form of the affidavit prescribed by section 4 is not mandatory but simply directory.

The only other assignment of error to which a response is necessary is that the county prosecuting attorney, in his closing argument, commented on the failure of the defendant to testify. The search of the appellant's house was made by several officers, and the only person present beside the officer was the appellant himself. The remarks of the county prosecuting attorney are set forth in a special bill of exceptions as follows:

"The county prosecuting attorney used the following remarks in closing the argument for the state in speaking of the still in question: `Then whose was it?' `It was up to them to show whose it was in his house' — to which remarks the attorney for defendant, T.E. Mortimer, objected thereto immediately after said remarks were made and before said argument was completed, and the court, sustained the objection by defendant's counsel."

This excerpt from the county attorney's remarks is so meager that it is impossible to say therefrom that it was aimed at the appellant's failure to testify. The use of the pronoun "them" indicates that he was not referring solely to the appellant, and, in so far as the excerpt discloses, he may not have intended to refer to him at all.

Affirmed.