Opinion
No. 27112.
May 14, 1928.
1. INTOXICATING LIQUORS. Search warrant made returnable to past date was void ( Hemingway's Code 1917, section 2088, as amended by Hemingway's Code 1927, section 2238).
Under Hemingway's Code 1917, section 2088 (Laws 1908, chapter 115), as amended by Hemingway's Code 1927, section 2238 (Laws 1924, chapter 244), relating to search warrants, a search warrant made returnable to a past date, an impossible date, was equivalent to making it returnable to a blank date, and was void.
2. CRIMINAL LAW. Evidence procured by virtue of search under void warrant held incompetent in liquor prosecution.
Evidence procured by virtue of search made under void search warrant held incompetent in liquor prosecution and its admission was fatal to state's case.
APPEAL from circuit court of Jefferson Davis county; HON. J.Q. LANGSTON, Judge.
Livingston Milloy, for appellant.
The search warrant was void for at least three reasons: First, it is unintelligible, in that it is dated on November 20, 1927, and made returnable on August 27, 1926; second, the writ is not made returnable instanter, or on a day certain but is made returnable more than a year past before the writ was really issued; third, no copy was served on the party found in possession. This court held in Crosby v. State, 144 Miss. 401, 110 So. 122, that unless a search warrant conforms to affidavit on which it was issued, it is void. In Brewer et al. v. State, 142 Miss. 100, 107 So. 376, it was held that a "John Doe" warrant was void. Again this court held in Bryant et al. v. Barnes, 144 Miss. 732, 106 So. 113, that a search warrant, authorizing search of defendant's person was not void by reason thereof, where a person was not searched, but in this case at bar, defendant was arrested about three-fourths of a mile from the place that was searched and where the whisky was found and was carried to the place of the search which we submit was equivalent to have his person searched, and was there confronted by the officers who made a search, and appellant says that when Mr. Polk came to where he was at work he did search appellant. Burnside v. State, 144 Miss. 405, 110 So. 121.
Rufus Creekmore, Assistant Attorney-General, for the state.
In this case the evidence upon which the defendant was convicted was not procured by a search of his person, but was procured by a search of his own corn crib. Since this is true, counsel is not in a position to object to the testimony because it was not procured by unlawful means, but by lawful means. That the officers may have unlawfully searched his person does not render the evidence theretofore found inadmissible. Hendricks v. State, 144 Miss. 87, 109 So. 263; Bryant v. Barnes, 144 Miss. 732, 106 So. 113.
The question with which we are confronted is, whether or not a search warrant which is made returnable at an impossible date, that is prior to the time of its issuance, is good. In Bufkin v. State, 134 Miss. 1, 98 So. 452; and Taylor v. State, 137 Miss. 217, 102 So. 267; it was held that some date must be fixed within a reasonable time after the issuance of the warrant for its return, and that it be executed within that time. When those cases were decided, section 2088 of Hemingway's Code, was in force which provided that a search warrant should be returnable at some fixed time not earlier than five days from its issuance. This section of the code was amended by chapter 244, Laws of 1924, which provided that a search warrant might be returnable instanter, or at some fixed date. In Powell v. State, 146 Miss. 677, 111 So. 738, after chapter 244, Laws of 1924, became effective, it was held that a search warrant which was returnable to a blank date was void, and evidence procured thereunder was inadmissible.
With these cases before me, I hesitate to argue that the warrant in this case, made returnable at an impossible date, is valid. However, it seems that where it is manifest that a clerical error has been committed, there should be some remedy and that the state should not be put to the trouble and expense of trying the case anew.
The appellant, George Buckley, was indicted on, and convicted of, a charge of possessing intoxicating liquor. The evidence in the case, tending to show the guilt of the appellant, was procured by virtue of a search warrant, which is alleged to be void. Upon a search of the appellant's premises, the sheriff found in a corncrib thereon a five-gallon demijohn with some three or four gallons of whisky in it. This corncrib was locked, the key of which was in the appellant's possession. The defendant denied that the whisky was his.
Pretermitting other questions involved herein, this case must be reversed, for the reason that the search warrant was based upon an affidavit dated November 20, 1926, while the warrant thereon was issued on the 20th day of November, 1927, but made returnable on the 27th day of August, 1926, and the return of the sheriff on the warrant disclosed execution on the 22d day of November, 1926. In any event, the warrant was made returnable to an impossible date.
In Bufkin v. State, 134 Miss. 1, 98 So. 452, and Taylor v. State, 137 Miss. 217, 102 So. 267, this court held that a date must be fixed within a reasonable time after the issuance of the warrant for its return, and that a warrant must be executed during the interim between the date of the issuance of the warrant and the return date thereof. These cases were decided in construction of, and with reference to, section 2088, Hemingway's Code 1917 (chapter 115, Laws of 1908), which section, since the decisions supra have been rendered, has been amended by section 2238, Hemingway's 1927 Code (chapter 244, Laws of 1924), the applicable part of which being in these words:
"The writ shall be returnable instanter or on a day stated and a copy shall be served on the owner or person in possession if such person be present or readily found."
In the case of Powell v. State, 146 Miss. 677, 112 So. 738, this court held that evidence procured by a search warrant with no return day thereon was inadmissible under section 2088, Hemingway's 1917 Code, as amended by chapter 244, section 1, Laws of 1924, in which case the search warrant referred to was returnable to a blank date. We conclude, therefore, that a search warrant made returnable to a past date, an impossible date, is equivalent to making it returnable to a blank date, and, consequently, is void. The evidence procured by virtue of the search made under this void warrant was incompetent and its admission fatal to the state's case.
Reversed and remanded.