Robert WOOD
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*463 Cunningham & Smith, John A. Ferrell, Booneville, for appellant.
A.F. Summеr, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for appellee.
Before RODGERS, PATTERSON, and SUGG, JJ.
RODGERS, Presiding Justice.
This case came to this Court from the Circuit Court of Lee County, Mississippi. The appellant Robert Wood has appealed from a judgment of conviction and sentence on a charge of having in his possession amphetamine, a controlled drug under the Uniform Controlled Substances Act of 1971.
The state offered testimony to show that an employed informer took a capsule containing amphetamine to the deputy sheriff a few weeks before December 28, 1973, and advised him that the capsule had been supplied to him by the appellant. On Deсember 28, the informer advised the officers that he had seen a number of red and black capsules in a bag that day in appellant's apartment; whereupon, the deputy sheriff obtained a search warrant from a justice of the peace based upon the information received from the informеr who had previously given the officers information that had led to discovery of crime in that county.
The officers went to the appellant's apartment and waited until he arrived. They then served a copy of the search warrant upon the defendant Robert Wood. The officers then proceedеd to search the apartment. They found certain capsules of drugs in the apartment which appeared to be similar to the capsule previously tested. The drugs were seized, and the appellant arrested. An examination of the drugs by the authorities at the Mississippi State Crime Laboratory established that the capsules contained amphetamine and others contained another drug, methaqualone.
The appellant appealed from his conviction and sentence and now contends that he did not receive a fair trial in the circuit court for the following reasons:
(1) The trial court erroneously permitted the introduction of the search warrant and its supporting affidavit secured for the purpose of searching his apartment, and erroneously permitted the introduction of the articles found in his apartment.
(a) The search warrant was not served on the defendant, appellant hеre.
*464 (b) The search began as an illegal search by an informer.
(2) The trial court erred in not requiring the state to reveal the identity of the real informer. Moreover, it is said that the trial court should have directed a verdict in favor of the appellant, because the state did not prove the appellant guilty beyond a reasonable doubt.
(3) The state erronеously obtained a "constructive possession" instruction.
We have read the record and the cases cited by the attorneys in their briefs, and we have reached the conclusion that there is no reversible error shown in the record. We, therefore, affirm the judgment of the trial court for the following reasоns.
The appellant contends that the search of the appellant's apartment was an illegal search, and that the contraband found therein was illegally seized, because it is said that the appellant, the occupant of the apartment, was present and was not served with a coрy of the search warrant authorizing the search. In support of this contention, the appellant points out that our new law with reference to search warrants issued under the authority of the Uniform Controlled Substances Law of 1971 specifically requires that the officer shall deliver a copy of the warrant to the occupant. The pertinent part of Mississippi Code Annotated Section 41-29-157 (Supp. 1974) is in the following language:
"(3) A warrant issued pursuant to this section must be executed and returned within ten (10) days of its date unless, upon a showing of a need for additional time, the court orders otherwise. If property is seized pursuаnt to a warrant, a copy shall be given to the person from whom or from whose premises the property is taken, together with a receipt for the property taken. The return of the warrant shall be made promptly, accompanied by a written inventory of any property taken. The inventory shаll be made in the presence of the person executing the warrant and of the person from whose possession or premises the property was taken, if present, or in the presence of at least one (1) credible person other than the person executing the warrant. A copy of the inventory shall be delivered to the person from whom or from whose premises the property was taken and to the applicant for the warrant."
The appellant cites the case of Adams v. State,
In the case now before the Court, the officer testified that he gave the defendant a copy of the search warrant, and, although there is testimony from the defendant that he was nоt served with a copy of the search warrant and the defendant's attorney requested a copy of the search warrant from the officer, we think this issue was a question for the trial judge to determine. Unless a trial judge has abused his judicial discretion in allowing a search warrant to be introduced, as shown by the greаt weight of the testimony, we will not reverse the judgment merely because there is a conflict in the testimony as to whether or not a copy was delivered to the defendant.
The defendant also objected to the introduction of the search warrant because it is said that the search of appellant's apartment was begun by a paid agent of the officers prior to the issuance of the search warrant. The testimony shows that a paid agent of the officers gave the officers a capsule which proved to be amphetamine and informed them that he had obtained the capsule from Rоbert Wood, the appellant. *465 The informer later informed the officers that he had seen a number of red and black capsules in the appellant's apartment on the day the search warrant was issued [December 28, 1973].
The appellant bases this argument upon the testimony of the appellant that he did not let anyone in his apartment on December 28, 1973, and did not know of anyone who had entered the apartment on that date. He argued, therefore, that if anyone entered his apartment he was a trespasser and committed an illegal search of the apartment, and since he was an аgent of the officers, the search was illegal and "the fruits" of the search were not admissible in evidence, nor could this illegally-obtained evidence be the basis for the search warrant. This objection is not well taken, because it is based on surmise and conjecture. One does not necessarily have tо search an apartment to see what goes on in the apartment. Moreover, if a defendant could avoid the consequences of a search by simply denying the truthfulness of the predicate on which the search warrant was issued, every search would be fatally vulnerable to a simple denial.
A majority of the state courts which have considered the question as to the extent a trial court may permit an attack upon the supporting affidavit for a search warrant have held that in the absence of a statute, that the matter contained in the affidavit on which the search warrant is based may not be disputed by the person against whom a warrant is directed, for the purpose of showing its invalidity. See cases collected under 68 Am.Jur.2d Searches and Seizures § 66, at 720 (1973).
In the case of O'Bean v. State,
It is next argued that the court committed reversible error in failing to require the state to divulge the identity of the person who informed the officers that the defendant had contraband in his apartment. This argument is based upon the State [Miss.Const. § 26] and Federal [U.S.Const. amend. V] Constitution rights of one to be confronted by the witnesses against him. He cites Strode v. State,
The trial judge gave the following instruction to the jury:
"STATES INSTRUCTION NO. 2
The Court instructs the jury for the State of Mississippi that if you believe from the evidence in this case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence that the Defendant Robert *466 Wood occupied the premises, and exercised control over the premises in which amphetamine was kept then he may be deemed to be in constructive possession of the amphetamine."
The appellant Robert Wood сontends on appeal that this instruction was an erroneous concept of the law and resulted in a reversible error in this case. His argument is based upon his interpretation of our factual finding in Curry v. State,
"What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of `possessiоn' is a question which is not susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance intentionally and consciously in possession of it. It need not be actual physical рossession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances."249 So.2d at 416 .
The appellant argues that the above quoted instruction did not inform the jury that the apрellant, the owner who was in control of the premises, was conscious that the contraband was in his apartment and that this is one of the requirements of the doctrine of guilt by "constructive possession."
This Court said in City of Jackson v. Gordon,
"We do not think it was intended by the act to hold a person guilty of the offense of unlawfully having in his possession liquor, wherе he did not know or was not conscious of the possession, even if by any stretch of reasoning it can be said that a person is in the possession of an article when he does not know of it. The proof offered by the defendant, denying knowledge of the possession, presented a question of fact for the determination of the jury; and while such defense may furnish an avenue of escape in such cases, this is only true when the jury believes from the evidence the defendant did not have conscious possession of the liquor."119 Miss. at 327 ,80 So. at 785-86 .
In Williamson v. State,
"Although the burden of proof was upon the State, the jury were freе to consider whether the prima facie case, made by the discovery of the liquors in a home to which access was procured by appellant's key and in a locked trunk therein which was not shown to be under the key of another, had been overturned. Their verdict sustained the inferences which such pоssession authorized, and we are unwilling to displace their judgment by a contrary view."191 Miss. at 647 ,4 So.2d at 221 .
The appellant has cited Quick v. State,
The fact that contraband found in one's automobile or apartment does not mean that that fact alone shows that the possessor of the premises or property is guilty of possessing contraband. It does mean, howevеr, that unless there is some explanation or circumstances to the contrary shown in the record, the jury has the right to infer that the possessor of the premises also possesses the articles located in the apartment or automobile, including the contraband. This is especially true where others dо not have access to a locked room or automobile. Such evidence establishes an issue for the determination of the jury, and not for the trial judge. State v. Stern,
The general rule in this state simply stated is this: Where contraband is found on the premises of which the defendant is in possession and control a rebuttable рresumption of fact[1] arises that the contraband is within the possession of the owner of the premises. The cases on which this rule is based are legion and may be found listed under Mississippi Digest, Intoxicating Liquor. One of the outstanding cases listed therein is the case of Bolin v. State,
It is true that we have repeatedly pointed out that instructions on presumptions of fact, other than a presumption of innocence, should not be given when all the facts in the case are before the jury. See cases cited in Mansfield v. State,
In the instant case, however, no explanation or evidence was offеred indicating how the contraband came into the appellant's apartment, nor is there evidence to show that other persons had ready access to the appellant's locked apartment or the place where the contraband was found. There is evidence, however, to show probable cause to believe that contraband was in the possession of the defendant.
We hold that the state was entitled to an instruction that the defendant was presumed to be in possession of the contraband in accordance with the foregoing rule under the facts here shown, and, although we do not approve the form of the subject instruction, we hold that the giving of this instruction was not a reversible error.
For the reasons above set out, we affirm the judgment of the trial court.
Affirmed.
GILLESPIE, C.J., and INZER, SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.
NOTES
Notes
[1] This is really not a persumption of law, but, rather, an inference permissibly deducted from the evidence before the court which the jury may accept or reject or accord such value and weight as they may decide. 20 Am.Jur. Evidence § 162, at 165 (1939).
[2] Shields v. State,