Opinion
No. 35943.
October 8, 1945.
1. STATUTES.
The code section prescribing occasions on which coroner may perform duties of sheriff must be read in connection with section pertaining to issuance of a search warrant to search and seize intoxicating liquor (Code 1942, secs. 2614, 3906).
2. CORONERS. Sheriffs and constables.
The coroner per se is not a "peace officer" but only performs the functions of a peace officer under certain circumstances and then only those of a displaced sheriff for a temporary period under specified conditions (Code 1942, sec. 3906).
3. INTOXICATING LIQUORS. Sheriffs and constables.
Where search warrant directing the search for and seizure of intoxicating liquor is addressed to sheriff and sheriff is disqualified, writ is properly delivered to coroner, but, in dealing with it, coroner performs functions of sheriff and not those of coroner (Code 1942, secs. 2614, 3906).
4. CORONERS.
Coroner is not inherently clothed with powers of peace officers generally or of a sheriff, specifically (Code 1942, sec. 3906).
5. INTOXICATING LIQUORS.
Where county had a sheriff and it was not shown that sheriff was disqualified, warrant, primarily addressed to coroner, as such, directing a search for and seizure of intoxicating liquor was illegal, particularly where all acts performed thereunder were performed by coroner as coroner, notwithstanding that warrant was also addressed to any lawful officer of the county (Code 1942, secs. 2614, 3906).
6. SEARCHES AND SEIZURES.
A search warrant issued merely to any lawful officer of county is a lawful search warrant, but even then, coroner, in the absence of anything to show disqualification of sheriff, cannot lawfully serve it (Code 1942, secs. 2614, 3906).
7. INTOXICATING LIQUORS.
Coroner's conduct in serving a warrant for search and seizure of intoxicating liquor while acting as coroner, and in no other capacity and for no other reason except that he is coroner, is a usurpation of duties and prerogatives of sheriff (Code 1942, secs. 2614, 3906).
8. CRIMINAL LAW.
Evidence that defendant was permitting games of chance to be played for money on his premises, discovered by coroner while acting under an illegal search warrant under circumstances which would have prevented him from lawfully acting even if warrant had been legal, was inadmissible over timely objection (Code 1942, secs. 2195, 2614, 3906).
APPEAL from the circuit court of Humphreys county, HON. S.F. DAVIS, Judge.
N.W. Sumrall and R. Leon Bass, both of Belzoni, for appellant.
The people shall be secure in their persons, houses and possessions from unreasonable seizure or search.
Constitution of 1890, Sec. 23.
Upon the affidavit of any credible person that he has reason to believe and does believe that intoxicating liquor is being stored, it shall be the duty of any justice of the peace or the judge to issue a search warrant, directed to the sheriff or any constable of the county, or if in a municipality to the sheriff or any constable or marshall or policeman therein, commanding him to proceed.
Keys v. State, 155 Miss. 574, 124 So. 789; Code of 1942, Sec. 2614; Laws of 1924, Ch. 244.
Process may be only served by the person designated in the code relating to this subject.
McDugle v. Filmer, 79 Miss. 53, 29 So. 996.
A coroner is not a conservator of the peace in Mississippi.
Martin v. State, 190 Miss. 32, 199 So. 98; Code of 1930, Secs. 1320, 1321 (Code of 1942, Secs. 2568, 2569).
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The affidavit and search warrant in this case were issued and made under Sections 2616 and 2617 of the Code of 1942 and not under Section 2614 of the Code of 1942, which section also deals with the making of an affidavit and search warrant, but does not prescribe in said section the form of warrant to be issued for such search. While the two statutes are to be construed together, it is manifest that when they come to prescribe the form for such search warrant, that the Legislature intended to give the officer issuing the search warrant a discretion as to what officer to deliver the warrant to, or to address the warrant to, and the provision in Section 2614 with reference to the officers named in that section is merely directory and not mandatory.
There may in many instances be good reason for selecting a particular officer to direct the warrant to, or to deliver the warrant to. It is well known that many sheriffs and constables are not diligent and faithful in making searches against all persons to whom a warrant may be issued on appropriate affidavit setting forth that the affiant has good reason to believe, and does believe, that such liquors are being kept, stored, sold or handled, contrary to law. It is believed that in many parts of the state persons designed to be searched by a search warrant are tipped off in time to remove their liquors or to thwart the search, and it is not fatal to a search warrant, or any other process, that it is not addressed to the proper officer even if the statute names a particular officer. This would appear from Section 1871 of the Code of 1942, under the chapter on Process, which is short and which reads as follows: "Any process appearing to be in other respects duly served, shall be good, though not directed to any officer." Section 1873 of the Code of 1942 provides that if any matter required to be inserted in or indorsed on any process be omitted, such process shall not on that account be void, but it may be set aside as irregular, or amended on such terms as the court shall deem proper, and the amendment may be made upon an application to set aside or quash the writ. There was no effort to quash the process because not properly directed to the proper office, or for any defect on the process. The question was made on objection to the evidence, which the issuance and service of process makes legal evidence. I submit that the above statutes make the service legal and the evidence was admissible.
A coroner is a constitutional officer provided for by Section 135 of the Constitution of 1890, and also an officer of high rank and a chief conservator of the peace at common law.
13 Am. Jur. 106, Sec. 3.
A coroner is an officer who takes the place of the sheriff whenever the sheriff is deemed incompetent, disqualified or unfit for serving in office. (Section 3906, Code of 1942.) It is submitted that when a justice of the peace or other judicial officer issues a warrant directed to an officer other than a sheriff, constable or policeman, the justice must be presumed to have acted with good reason and to have had sufficient cause to so direct the warrant.
A justice of the peace is expressly authorized by Section 1814 of the Code of 1942 in cases of emergency where a constable, sheriff or deputy sheriff cannot be had in time, to appoint some reputable person to execute any process. Under this statute the Supreme Court held in Alfred v. Batson, 91 Miss. 749, 45 So. 465, that such presumption of legality would be indulged, and in Gilbert v. Glenny, 135 Miss. 603, 99 So. 507, that a justice of the peace in cases of emergency is authorized to appoint a private person to execute any process which the justice of the peace is authorized to issue, whether such writ is returnable to his court or some other court.
Under Section 1877 of the Code of 1942 a judge is authorized to appoint persons to serve process where the sheriff and coroner are disqualified or vacancies exist in said offices, or for other good cause shown, and that he may direct such process to any disinterested and proper person who shall thereby be authorized to execute and return the process in the same manner and with the same effect in law as if such person were sheriff of the county. A court will not inquire collaterally into these appointments.
Lipscomb v. State, 76 Miss. 223, 25 So. 158; State v. McPhail, 182 Miss. 360, 180 So. 387; Hanson v. State, 174 Miss. 88, 164 So. 9.
In the case before us a search warrant was delivered to an officer who is authorized to execute process at least in cases such as above mentioned.
There is no examination in the record shown as to what reason actuated the justice of the peace in appointing or directing the coroner to serve the process rather than the sheriff, but the presumption prevails that the court was acting properly in doing so and it is within the discretion of the court to issue the process as it did.
The statutes of the state show that it is the policy of the state to have the liquor laws enforced, and to obtain evidence for that purpose search warrants may issue on probable cause to procure evidence for such purpose. If while searching for liquor under a proper warrant, the officer finds other violations of the law, he is under duty to report them to appropriate authority.
Code of 1942, Sec. 2478.
Appellant was indicted in the Circuit Court of Humphreys County at the February Term, 1945, for permitting and suffering games of chance to be played for money on his premises in violation of Section 2195 of the Code of 1942. He was convicted, fined and appealed to this Court.
Several matters are discussed in the record, but we think a decision of the case hinges on the validity of the search warrant issued to the coroner of Humphreys County. Under the authority of this search warrant the coroner, to whom it was addressed along with any lawful officer of Humphreys County, searched the premises of appellant for intoxicating liquors, which were found on the premises and destroyed by the coroner, who arrested the appellant and released him on his own recognizance. While searching for the intoxicating liquor the coroner discovered several parties gambling in a back room of the premises of appellant, which had a store and filling station in front. On the trial the coroner was offered by the state as a witness against appellant on the charge of permitting gambling unlawfully in his place of business. Timely objection was made to this evidence based on the alleged illegality of the search, and overruled by the court.
This brings us to consideration of the question, whether or not a search warrant may be lawfully issued a coroner as such, who has no inherent power to perform the duties of the peace officers listed in the statute. He is only eligible to act in certain statutory contingencies to perform certain duties of a sheriff. But here he was acting as coroner exclusively.
We will not discuss the authorities and statutes dealing with civil process and writs, since in our judgment this matter is determinable under Section 2614 of the Code of 1942, which provides among other things that under the affidavit of any credible person that he has reason to believe and does believe that intoxicating liquor is possessed by another at a designated place contrary to the laws of the state "it shall be the duty of any justice of the peace of the county or county judge, or the judge of the circuit court of the district or the chancellor of the district in which the place is situated, to issue a search warrant, directed to the sheriff or any constable of the county, or if in a municipality, to the sheriff or any constable or marshal or policeman therein, commanding him to proceed . . . to seize said intoxicating liquor . . . and to arrest the person, or persons in possession and control of the same."
The affidavit in this case was made by the coroner, signing the same as coroner, and the search warrant in the pertinent part reads this way:
"To the coroner or any lawful officer of Humphreys County:
"Whereas, Linton G. North, Coroner, has this day made complaint on oath before the undersigned officer in and for said county that he has reason to believe," etc.; and concludes, in part, "Wherefore, we command you that with such aid as in your judgment shall be needed you do proceed in the day or nighttime," etc.
The coroner was therein further directed to seize the intoxicating liquor, arrest the party in possession of it, and bring him before the justice of the peace who issued the search warrant. The return on the search warrant was as follows:
"I have this day executed the within writ by delivering a true copy of the same personally to the said Jesse Millwood, I searched the premises according to the command of the said writ, finding one quart of gin and five and one-half gallons of 12% wine. I destroyed the gin and wine and arrested the said Jesse Millwood, releasing him on his own recognizance. This the 1st day of September, 1944.
"Linton G. North, Coroner."
On his examination as a witness Mr. North testified that he acted as coroner in these transactions under discussion. In the briefs on both sides it appears from the argument of the attorney for the appellant and of the Attorney General that there was a sheriff of Humphreys County in office at the time, but strange to relate, no inquiry of witnesses was made with reference to this fact. However, it appears from the record and the briefs that the coroner acted herein not as substitute for the sheriff, not as acting sheriff, but purely and simply and wholly in his capacity of coroner; not intending the performance of the powers as those of the sheriff; or in lieu of him, but exercising rights of a coroner, independent of any relation to the sheriff.
Section 3906 of the Code of 1942 prescribes the occasions on which a coroner may "do and perform any and all of the duties which appertain to the office caused by vacancy or exception to the sheriff, any writ shall be delivered to the coroner to execute, and said coroner shall do and perform all things by virtue of such writ or warrant which ought to be done therewith and thereunder." This section must be read in connection with Section 2614 of the 1942 Code. The latter section directs that the search warrant shall be addressed to certain peace officers therein, and the coroner per se is not a peace officer but only performs the functions of a peace officer under certain circumstances not here present, and then only those of a displaced sheriff, for a temporary period, under the conditions set out in Section 3906, supra. However, that section provides that, in certain events not argued here in justification, the writ shall be delivered to the coroner to execute, while Section 2614 provides it shall be addressed to the listed peace officers. If this warrant in this case had been addressed to the sheriff, and the sheriff came within any of the disqualifications and exceptions listed in Section 3906, then the writ would properly be delivered to the coroner, but in dealing with it he would perform the functions of the sheriff and not of the coroner. Nowhere in the Code or in the Constitution of Mississippi, or the common law have we been able to find authority for the proposition that a coroner is inherently and independently clothed with powers of peace officers generally, or of a sheriff, specifically.
It does not aid the position of the state in this case that, in addition to being addressed to the coroner, the search warrant is also addressed to any lawful officer of the county, because it was served and the search was made thereunder by the coroner acting only as a coroner, to which officer it was primarily addressed. Furthermore, no presumption of regularity here in the issuance of this writ can be indulged because the fact appears that it was issued to the coroner and all acts thereunder were performed by the coroner as coroner only. Therefore we do not decide whether a presumption would or would not arise in criminal cases in favor of regularity of the service of the writ by the coroner if the writ had been issued to the sheriff, and then delivered to the coroner under Section 3906, supra, who would perform the functions and duties of a sheriff in dealing therewith. Such is not the situation in this case. If this warrant had been issued merely to any lawful officer of Humphreys County, it would have been a legal search warrant, Matthews v. State, 134 Miss. 807, 100 So. 18, but even then the coroner could not lawfully serve it here. The warrant in that case was so issued and delivered to and served by the sheriff, who had full authority to do so, but in the case at bar it was not only addressed to and delivered to the coroner, who had no authority under the powers of his office to serve it, but the justice of the peace had no authority to direct it to a coroner, requiring him to perform the peace officer functions of a sheriff simply because he was coroner. There must be much more, as the statutes set out.
In the case of Keys v. State, 155 Miss. 574, 124 So. 789, 790, the Court said:
"Section 2238 of Hemingway's Code of 1927, chapter 244 of the Laws of 1924 (now Section 2614, Code 1942), makes it the duty of the justice of the peace of the county, or circuit judge or chancellor of the district to issue the search warrant directed to the sheriff or any constable or marshal or policeman, if in a municipality, commanding him to search the place described.
"Section 2241, Hemingway's Code 1927, chapter 244 of the Laws of 1924, sets forth a form of such warrant to be issued, part of which is in this language, `to any lawful officer of (said) county.'
"The search warrant in this case was in the form prescribed by the statute, and we think that any of the officers named in section 2238, supra, were authorized to serve the warrant within the territory in which they were authorized, as officers, to act. This search warrant was served by policemen of the city of Hattiesburg, within the city. The policemen did not undertake to serve it in territory outside of the corporate limits of the city of Hattiesburg. Hence, we think no error may be predicated thereon."
In other words, as long as the officers listed are lawfully performing the proper functions of their particular office within their jurisdiction they are authorized so to do by law, but here we have a coroner acting as coroner, and in no other capacity and for no other reason except that he is coroner, which in our judgment is an usurpation of the duties and prerogatives of the sheriff — part of whose compensation depends upon costs in criminal cases, including violations of liquor and gambling laws.
Timely objections were made to the evidence, which objections were overruled, as was also a motion, after the conclusion of the evidence, that it be excluded from consideration of the jury, and the jury instructed peremptorily to find the defendant not guilty.
We think under the statutes applicable to the record in this case that the trial court committed reversible error in the rulings on the evidence and approving the legality of the search and that this search warrant was issued and directed in violation of the mandatory requirements of the statute; conferred no authority on the coroner; and that therefore his actions in connection with the search warrant were not sanctioned by law; and the evidence he obtained under the authority of the search warrant was not admissible against appellant. Therefore the judgment of the lower court will be reversed and the cause remanded.
Reversed and remanded.