Opinion
No. 28218.
February 10, 1930. Suggestion of Error Overruled, March 10, 1930.
1. CRIMINAL LAW. Denial of continuance on ground of defendant's illness was not erroneous, where defendant could have appeared without detriment to his health.
Overruling motion for continuance on ground of illness of defendant charged with possession of intoxicating liquor was not error, where evidence justified finding that defendant could have appeared in court without detriment to his health.
2. ARREST. Warrant was not necessary for arrest of one whom sheriff while on public road observed returning from bushes with whisky.
Where sheriff while on public road observed person returning from bushes with a glass jug containing liquid which he recognized as whisky, a warrant was unnecessary in order to justify arrest, regardless of whether such person was then on his premises, and sheriff's evidence relative thereto was competent, in that no unlawful search was made by public officer who, while in a place where he has right to be, observed things occurring in open view on private property.
3. INTOXICATING LIQUORS. Evidence that sheriff had visited defendant's premises on prior occasion after issuance of search warrant was properly excluded in liquor prosecution.
In prosecution for possession of liquor, refusal to permit cross-examination to show that sheriff had visited defendant's premises on prior occasion after issuance of search warrant was not erroneous, in that such evidence had no bearing on admissibility of other evidence in respect to arrest of defendant after sheriff while on public road had observed him returning from bushes with whisky.
4. CRIMINAL LAW. Failure of judgment of justice of the peace, on appeal to circuit court, to set forth judicial district, did not invalidate it ( Hemingway's Code 1927, sections 64, 2381).
Failure of judgment of justice of the peace to set forth his judicial district did not invalidate judgment, since under Code 1906, section 2727 (Hemingway's Code 1927, section 2381), entry on docket was sufficient record of matters therein set forth and rendered all subsequent entries in docket official, and it was not one of the matters which under Code 1906, section 84 (Hemingway's Code 1927, section 64), justice of the peace was required to certify to circuit court.
5. CRIMINAL LAW. Affidavit was not defective for failure to set forth that justice was justice of the peace of certain supervisors' district ( Hemingway's Code 1927, section 2375).
Under Code 1906, section 2721, as amended by Laws 1926, chapter 209 (Hemingway's Code 1927, section 2375), relating to boundaries of districts of justices of the peace, affidavit on which prosecution was based was not defective for failure to set forth that justice was a justice of the peace in certain supervisors' district of county.
6. CRIMINAL LAW. No question relative to introduction of judgment of justice court was presented without objection thereto in lower court.
Where record disclosed no objection in lower court relative to introduction in evidence of judgment of the justice of the peace convicting defendant, no question relative thereto was presented on appeal.
APPEAL from circuit court of Rankin county. HON. D.M. ANDERSON, Judge.
J.S. McGuire, of McComb, for appellant.
An affidavit is void which charges that the alleged crime was committed in Justice of the Peace District No. 5 when there is no Justice of Peace District No. 5, but should have been made in the fifth supervisors district, Rankin county.
The thirteen-day period was an unreasonable time for an officer to have in his possession an unreturned search warrant, especially where it applies to immovable property.
Blakemore on Prohibition; Taylor v. State, 102 So. 267; Powell v. State, 111 So. 738.
Colbert Dudley, of Forest, for appellant.
A justice, being at the time in another district, outside of his territorial jurisdiction, cannot hold an ex parte hearing, take evidence upon an affidavit and make a judicial finding of the probable cause upon which a search warrant issues.
Hendrix v. State, 109 So. 263, 144 Miss. 87; Mai v. State, 119 So. 177.
Article 6, section 171 of the Constitution creates the justice court and provides for the election of justices in and for each justice district.
Sec. 2403, Code 1927.
A question of jurisdiction can be raised at any time.
An officer cannot hold a search warrant over a man's head and swoop down whenever he feels like it but a warrant should issue for each search.
Powell v. State, 146 Miss. 677.
W.A. Shipman, Assistant Attorney-General, for the state.
A motion for a continuance is addressed to the sound discretion of the court, and the supreme court always interferes with extreme reluctance and caution; and will only interfere when a palpable error has been committed by the court below, without the correction of which manifest injustice will be wrought and wrong done the appellant.
McDaniel v. State, 8 S. M. 401; Stewart v. State, 50 Miss. 589; Parker v. State, 55 Miss. 417; Gavigan v. State, 55 Miss. 540; Corban v. State, 99 Miss. 486, 55 So. 43; Haggett v. State, 99 Miss. 844, 56 So. 172; Polk v. State, 64 So. 215; Sullivan v. State, 108 Miss. 709, 67 So. 177.
Where a person had committed an indictable offense in the presence of the sheriff, he or a private person for that matter, was authorized to make the arrest then and there, and in the manner in which the evidence shows it to have been made, without warrant.
Section 1447, Code of 1906, section 1265, Hemingway's Code 1927.
The facts in this case differentiate from the rule stated in Butler v. State, 135 Miss. 885, 101 So. 193, and Iupe v. State, 140 Miss. 279, and place it squarely within the rule announced in Hester v. United States, 44 Sup. Ct. Rep. 445.
Argued orally by J.S. McGuire and Colbert Dudley, for appellant, and by W.A. Shipman, Assistant Attorney-General, for the state.
This case was appealed to the court below from a judgment of a justice of the peace convicting the appellant of having intoxicating liquor in possession. The case was tried in the court below in the absence of the appellant, a motion for a continuance on the ground of his illness having been overruled. The court below committed no error in overruling this motion, for it was justified in finding, from the evidence, that the appellant could have appeared in court without detriment to his health.
The conviction was on the evidence of the sheriff, admitted over the appellant's objection. The ground of this objection is that the evidence was obtained by the sheriff by a search of the appellant's premises under a defective search warrant and after the expiration of a reasonable time within which the search could have been made after the warrant was issued.
The evidence was to the effect that the sheriff and another, on the night of April 27, 1929, were in the public road in front of the appellant's residence intending to make a search thereof under the warrant, and while there an automobile drove up and stopped. The occupants thereof went to the door of the appellant's residence, returned to the automobile accompanied by the appellant, who walked a short distance therefrom into some bushes and returned with a glass jug containing a liquid which the sheriff says he recognized as whisky; and that he (the sheriff) laid his hand on the jug, saying, "I will take this," when the appellant recognized him and dropped the jug without breaking it. The sheriff then examined its contents, which proved to be whisky. He then arrested the appellant and served his warrant.
On this evidence, the warrant was not necessary in order to justify the arrest of the appellant. The sheriff was not on the appellant's premises when he saw him with the whisky; and assuming, though the evidence leaves that fact in doubt, that the appellant was then on his premises and not in the public road the sheriff's evidence relative thereto is competent, for the eye commits no trespass, and no unlawful search is made by a public officer, who, while in a place where he has the right to be, observes things occurring in open view on private property.
On cross-examination, the appellant sought to elicit from the sheriff that he had visited the appellant's premises on a prior occasion after the issuance of the warrant with it in his possession, but was not permitted to do so. This evidence was properly excluded, for it could have had no bearing on the admissibility of the evidence which the sheriff had given, or to any other relevant fact in the case.
The judgment of the justice of the peace does not set forth his judicial district, and one of the appellant's contentions is that the judgment is void because this fact is not therein set forth. Section 2727, Code of 1906, section 2381, Hemingway's 1927 Code, provides that each justice of the peace shall, "at the beginning and in front of all his entries in his docket, make and subscribe substantially the following entry, to-wit: `A docket of proceedings in matters civil and criminal before ____, a justice of the peace of the county of ____, in the state of Mississippi, in district No. ____ of said county, for the election of justices of the peace.'" This entry on his docket is a sufficient record of the matters therein set forth; renders all subsequent entries in the docket official, and is not one of the matters which, under section 84, Code of 1906, section 64, Hemingway's 1927 Code, a justice of the peace is required to certify to the circuit court in cases appealed from his court thereto.
The affidavit on which the appellant was tried, and the certificate of the justice of the peace to the record, set forth that he (the justice of the peace) as "a Justice of the Peace of District Number 5, Rankin county, Mississippi." According to the contention of the appellant, they should have set forth that he is a justice of the peace in the fifth supervisors' district of Rankin county. This contention is, of course, without merit. Section 2721, Code of 1906; section 1, chapter 209, Laws of 1926, section 2375, Hemingway's 1927 Code, provides that: "There shall be five districts in each county for the election of justices of the peace, the boundaries of which shall be the same as the boundaries of the districts for the election of members of the board of supervisors, and two justices of the peace shall be elected for each district by the electors thereof," etc. While the area of these districts is the same as that for members of the board of supervisors, the districts, nevertheless, are for the election of justices of the peace, and are properly designated as such.
The judgment convicting the appellant was introduced in evidence by the state. The appellant here complains thereat, but as the record discloses no objection thereto in the court below, no question relative thereto is here presented.
Affirmed.