Opinion
No. 32719.
November 1, 1937.
SEARCHES AND SEIZURES.
Affidavit for search warrant, stating that affiant had suspicion that stolen goods were concealed on premises of accused, instead of stating in statutory words that affiant "has reason to believe and does believe" that stolen goods were on premises of accused, was insufficient to support valid search warrant, since under Constitution suspicion is not sufficient foundation for issuance of search warrant (Code 1930, section 1357; Const. 1890, section 23).
APPEAL from the circuit court of Neshoba county. HON. D.M. ANDERSON, Judge.
J.B. Hillman, of Philadelphia, for appellant.
The affidavit for search warrant and the search warrant and the returns endorsed on the search warrant by the sheriff was all admitted in evidence over the objection of the appellant. Appellant contends that the search made under the search warrant in question was illegal because the affidavit on which the search warrant was based was void in that it failed to aver that "affiant has reasons to believe and does believe, etc." as is required by Section 1357, Code 1930.
The phrase, "affiant has reasons to believe and does believe, etc." was also left out of the search warrant.
Tucker v. State, 90 So. 845, 128 Miss. 211; Turner v. State, 98 So. 240, 133 Miss. 738; State v. Watson, 98 So. 241, 133 Miss. 796.
It is true that the above authorities were based upon affidavits and warrants for the search and seizure of intoxicating liquors, but evidently the Legislature intended that the same rules should apply to a search for stolen goods, or they would not have adopted and enacted sections 1357 and 1358, Code 1930, setting out the forms of affidavits and warrants to be used by the officers taking the affidavit and issuing the warrant.
Appellant submits the place designated to be searched in the affidavit and warrant in question was "the dwelling house of the said Len Bouchillon and the outhouses connected therewith."
The evidence submitted by the State over the objection of the appellant shows that a search was made and the evidence found on the outside and away from the dwelling house or outhouses connected therewith of the appellant.
Section 1329, Code of 1930; Bradley v. State, 98 So. 458; Taylor v. State, 98 So. 459; Falkner v. State, 98 So. 691.
W.D. Conn, Jr., Assistant Attorney General, for the state.
The objection to this affidavit is that it does not state that "affiant has good reason to believe and does believe" that the stolen property was located in or about the dwelling house, etc.
On the authority of Kelly v. State, 158 Miss. 808, 131 So. 272, the contention of appellant in this respect is not well taken. The affidavit in this case, as was true in the Kelly case, is based on something stronger than mere belief. It charges as an absolute fact that the stolen articles, or some of them, are concealed in or about the dwelling house, etc.
In Strangi v. State, 134 Miss. 31, 98 So. 340; Taylor v. State, 134 Miss. 110, 98 So. 459; Fatimo v. State, 134 Miss. 175, 98 So. 537, this court laid down what appears to be a very definite rule on the subject, that is that if a search warrant calls for the search of a room in a house, it is unlawful for the officer to search the balance of the house; or, if the warrant authorizes the search of a dwelling house, the search of the premises around the house would be unlawful.
In the case at bar the search warrant called for a search of the dwelling house and outhouses. The carcass of the hog was found in neither. I take it that the law relating to searches and seizures of whiskey applies equally as well to searches for stolen property.
The principal evidence in behalf of the State was procured as a result of the execution of a search warrant, which was issued upon the following affidavit:
"State of Mississippi, "Neshoba County.
"Before me, W.J. Kirkland, a Justice of the Peace of said County, J.W. Burt makes oath that on or about the 20th day of February, 1936, in the said county, that one black and white spotted male hog, weight about 130 pounds, the property of the affiant to the value of $12.50 were feloniously stolen, taken and carried away; and affiant suspects Len Bouchillon and Jim Bouchillon as the persons guilty of said crime and that the said stolen articles are now concealed in or about the dwelling house or outhouses connected therewith of the said Len Bouchillon and Jim Bouchillon in said county; and affiant prays a search warrant to search the said premises, and to seize the said goods, if found, and also the body of the said Len Bouchillon and Jim Bouchillon to be disposed of according to law.
"J.W. Burt
"Sworn to and subscribed before me this the 21st day of February, 1936.
"W.J. Kirkland, "Justice of the Peace"
It will be observed that the affidavit does not contain the words prescribed in section 1357, Code 1930, that affiant "has reason to believe and does believe," which must be inserted preceding the words "that the said stolen articles," etc. The affidavit avers nothing more throughout than a suspicion, which, of course, is not sufficient. Turner v. State, 133 Miss. 738, 98 So. 240; State v. Watson, 133 Miss. 796, 98 So. 241. If search warrants could be issued upon no better foundation than suspicion, section 23 of our Constitution might as well have been omitted.
Reversed and remanded.