Opinion
No. 27673.
February 11, 1929.
INTOXICATING LIQUORS. Affidavit for search warrant held void for failure to allege that liquors were kept for purpose of sale, in violation of law ( Hemingway's Code 1927, section 2238).
Affidavit for search warrant, alleging affiant had reason to believe and did believe that intoxicating liquor was being kept in violation of the law, held void for failure to allege that such liquors were being kept for purposes of sale in violation of law, in accordance with mandatory requirement of Hemingway's Code 1927, section 2238.
APPEAL from circuit court of Prentiss county, HON. C.P. LONG, Judge.
Friday Windham, for appellant.
It is evident from a reading and comparison of the affidavit and search warrant with par. 1, sec. 1, chap. 244, Laws of 1924, sec. 2238, Hem. Code 1927, that the same is void. Said section reads as follows: "Upon the affidavit of any credible person that he has reason to believe and does believe (1) that intoxicating liquor is being stored kept, owned, controlled in any building or room in a building, or outhouse, or any place, or in any trunk or other receptacle of containing or concealing intoxicating liquor, for purposes of sale in violation of the laws of the state of Mississippi," a warrant shall issue, etc. The affidavit here leaves out and omits the phrase for purpose of sale. In our opinion the failure of the affiant to swear that the intoxicating liquors were being kept for purpose of sale as required by the statute authorizing the issuance of a search warrant, renders the affidavit void. This court has held that laws authorizing searches and seizures are to be strictly construed against the state. Livelar Co. v. State, 98 Miss. 330, 53 So. 681. In Turner v. State, 133 Miss. 738, 98 So. 240, the court said: "A statute authorizing the issuance of a search warrant is mandatory as to what the affidavit shall contain." Under this holding the omission of the phrase, for purpose of sale, is not a mere formal defect, but a substantial defect which renders the affidavit void. Consequently the search and seizure was illegal and the evidence of the officers inadmissible. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377.
James W. Cassidy, Jr., Assistant Attorney-General, for the state.
Appellant contends that the affidavit for the search warrant in this case is void because it does not state that the intoxicating liquor is being stored, kept, owned . . . . for the purposes of sale, in violation of the laws of the state of Mississippi. It is contended that unless the affidavit contains the words "for purposes of sale" that it is not in conformity to chap. 242, Laws of 1924. In answer to this contention, I submit that it was not necessary for the affidavit to contain the words "for purposes of sale;" that the affidavit does state "that intoxicating liquor is being, by Grover Estes, kept in violation of the laws of the state of Mississippi . . ." The search warrant which was issued upon this affidavit states that: "Whereas, L.M. Womack has this day made complaint on oath that intoxicating liquor is possessed or kept for sale in violation of the laws of the state of Mississippi, in or on the car, dwelling house or premises of Grover Estes . . ." It is apparent therefore that the failure of the affiant to state in the affidavit that the liquor was kept for the purpose of sale makes no difference. It must be presumed that the justice of the peace before whom the affidavit was made and by whom the search warrant was issued, judicially determined the fact that the affiant made oath before him orally that the intoxicating liquor was kept for sale, in violation of the laws of Mississippi. The issuance of a search warrant is a judicial finding by the officer issuing it of the necessary statutory grounds therefor. Hendrix v. State, 144 Miss. 87; Loeb v. State, 133 Miss. 833; Joe Mai v. State, 119 So. 177. The evidence secured by the officers who made the search, acting upon this search warrant, is admissible on the trial against this appellant, and that no error was committed by the trial court in so admitting the evidence secured.
The appellant, Grover Estes, was convicted in the circuit court of Prentiss county on a charge of unlawfully having in his possession intoxicating liquors, and from this conviction, and the sentence imposed, he prosecutes this appeal.
The testimony upon which the conviction rests was obtained by means of a search warrant issued upon an affidavit alleging that the affiant "has reason to believe and does believe that intoxicating liquor is being by Grover Estes kept in violation of the laws of the state of Mississippi," etc., and the introduction of this testimony was objected to on the ground that this affidavit, and the search warrant based thereon, were void, and consequently that the search and seizure were illegal. This objection was overruled, and on appeal the appellant assigns as error the admission of the testimony procured by means of this search.
We think the objection to this testimony was well founded. The statute authorizing the issuance of a warrant to search for intoxicating liquors (chapter 244, Laws of 1924; section 2238, Hemingway's 1927 Code) provides, among other things, that:
"Upon the affidavit of any credible person that he has reason to believe and does believe: (1) That intoxicating liquor is being stored, kept, owned, controlled, or possessed in any building or room in a building, or outhouses or any place, or in any trunk or other receptacle capable of containing or concealing intoxicating liquor for purposes of sale in violation of the laws of the state of Mississippi."
This provision of the statute authorizes the issuance of a search warrant only upon an affidavit alleging that intoxicating liquors are being stored, kept, owned controlled, or possessed for purposes of sale in violation of the laws of the state. There is no authority conferred thereby to issue a search warrant upon an affidavit alleging merely that intoxicating liquors were being kept or possessed in violation of the law, but the allegation must be that such liquor is being kept or possessed for purposes of sale in violation of the law. In the case of Turner v. State, 133 Miss. 738, 98 So. 240, it was held that this statute is mandatory as to what the affidavit shall contain. The affidavit here involved does not comply with the requirement of this provision of the statute, and it was therefore void, and the search and seizure illegal. The judgment of the court below will therefore be reversed, and the cause remanded.
Reversed and remanded.