Opinion
No. 30581.
March 13, 1933.
1. SEARCHES AND SEIZURES.
Issuance of search warrant by justice of peace is adjudication that there was probable cause therefor.
2. SEARCHES AND SEIZURES.
Adjudication by justice of peace that there is probable cause for issuance of search warrant is sufficient to show probable cause for search.
3. INTOXICATING LIQUORS.
Where search warrant recited manufacture of liquors on premises involved, which was not included in affidavit therefor, there was variance between affidavit and search warrant.
4. CRIMINAL LAW.
Variance between affidavit and warrant for search of employer's premises was immaterial, where accused, prosecuted for illegal manufacture, admitted employment as distiller on premises, and no evidence was obtained from accused's person or by means of unlawful arrest.
APPEAL from circuit court of Pearl River county. HON. J.Q. LANGSTON, J.
Jno. C. Street, of Poplarville, for appellant.
The warrant was void because (a) it does not conform to the affidavit upon which it was based, there being such a variance as to be fatal; (b) neither the affidavit or warrant contains the name of any person, the designation "alias Mr. Nix" not being a real name; (c) the description in both the affidavit and warranty of the premises to be searched is vague and indefinite and too general and does not designate any certain place to be searched, as required by law: (d) both the affidavit and warrant contain at least two, if not three, different places which the officer is commanded to search; (e) the warrant does not command the officer to search for and seize a still, but to seize "any such intoxicating liquors, vessels or appliances."
Section 1975, Code of 1930; 24 R.C.L. 702; Morton v. State, 101 So. 379; Brewer v. State, 107 So. 376.
No warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.
Section 22, Constitution.
Tucker v. State, 90 So. 845; Duckworth v. Town of Taylorsville, 107 So. 666.
The constitutional requirement is a description which particularly points to a definitely ascertainable place, and so as to exclude all others.
Rignall v. State, 98 So. 444; 24 R.C.L. 713; Section 1975, Code of 1930; Cornelius on Search and Seizure, par. 30, p. 347; 103 Me. 471 (69 A. 1075); Sanders v. State, 106 So. 822.
There was no legal service of search warrant.
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.
Section 1975, Code 1930.
The arrest of the appellant at the time of his arrest was without authority of law.
Butler v. State, 101 So. 193; Robinson v. State, 108 So. 903.
The attorney-general says that appellant made no objection to the search and that had he objected his objection would have been met by producing the search warrant. We do not understand the law to be that if one upon whom a search warrant must be served does not object to the search and seizure that he thereby waives his right to have the writ served on him.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is undisputed in the record that appellant was hired by Curcio to operate this still at twenty dollars a week. He had no more control of the premises where this still was located than any other employee in any other line of business. His presence there did not constitute possession or control of the premises. It is well settled in this state that a defendant cannot complain of search of premises of property not owned by him and not in his possession or control.
Cofer v. State, 130 So. 511; Polk v. State, 142 So. 480; Lee v. City of Oxford, 134 Miss. 647, 99 So. 509; Lovern v. State, 140 Miss. 635, 105 So. 759.
Appellant complains that there was no legal service of the search warrant. For the reason above pointed out appellant is not in position to raise this question, because he was not in the "possession" of these premises, as contemplated by the Constitution and statute.
The appellant, being present when the search was made had, of course, the right to object thereto until the officer disclosed the search warrant to him, but he made no such objection, and, if he had, his objection would have been instantly met by the production of the warrant.
Forshee v. State, 120 So. 462, 152 Miss. 566.
The appellant, John Castellucio, was convicted for manufacturing intoxicating liquor, sentenced to serve a term of two years in the state penitentiary, from which he appeals here. He was indicted jointly with Nick Curich and Rudolph Curich, but on motion was granted a serverance and was tried separately.
The principal evidence against the appellant was a confession, coupled with the evidence discovered by means of a search warrant issued by a justice of the peace for the purpose of making a search of the premises of one "Alias Mr. Nix" in a building occupied by him, in which affidavit was made that affiant had good reason to believe, and did believe, that intoxicating liquor was being stored, kept, owned, controlled, or possessed for the purpose of sale, on the premises commonly known as the "Grabe Place" and the "Ash Place," located at Ozono. The sheriff, armed with this search warrant, with several deputies, went to the Grabe place, and, on being examined, the sheriff testified at great length as to the information upon which he obtained the search warrant.
The justice of the peace, having issued the search warrant, adjudicates that there was probable cause, and we have held that this adjudication is sufficient to show there was probable cause to make the search without any doubt.
There was a variance between the affidavit for the search warrant and the search warrant, in that the search warrant embraces also a recital of manufacturing liquors at said premises.
We do not think, so far as the appellant is concerned, that the legality of the search warrant is material. The sheriff went upon the premises, and there saw the building from which the appellant and Rudolph Curcio came. Rudolph Curcio is the son of Nick Curcio, who was the owner and in possession of the premises searched. The sheriff was reading the warrant to Rudolph Curcio, Nick Curcio being absent, when the deputies on the opposite side of the house called to the appellant to stop or halt, and fired a shot, whereupon the sheriff ran around on that side and saw the appellant approaching the deputies with his hands up submitting to arrest. The house was searched, and there was found therein a still in operation manufacturing alcohol. The appellant voluntarily and freely, according to the evidence, stated that he did not own the property, that he was merely employed there as a distiller, stating to the sheriff that he received twenty dollars a week for his services as a distiller. No rights of the appellant were violated by the unlawful search of Nick Curcio's property, and the evidence was not obtained from the appellant's person or by means of an unlawful arrest.
We find no reversible error in the record, and the judgment is affirmed.
Affirmed.