Summary
In Powell v. State, 196 Miss. 331, 17 So.2d 524 (1944), this Court was presented with the issue of whether a criminal prosecution could begin by an affidavit for a search warrant.
Summary of this case from Stidham v. StateOpinion
No. 35500.
April 10, 1944.
1. CRIMINAL LAW.
A criminal prosecution is not begun before justice of the peace by affidavit for, and issuance and execution of, a search warrant which is a preliminary or ancillary writ, but an additional affidavit or indictment must be made charging the person with particular crime of which the evidence indicates he is guilty.
2. INDICTMENT AND INFORMATION. Searches and seizures.
Search warrants may be based upon two or more statutory grounds in the disjunctive, but a defendant may not be put to trial on two or more charges in the disjunctive.
3. INTOXICATING LIQUORS.
Accused could not be convicted of unlawful possession of intoxicating liquors on affidavit for search warrant which did not conclude with averment that accused had committed offense "against the peace and dignity of the state" as required by the Constitution (Code 1942, sec. 2614; Const. 1890, sec. 169).
4. CRIMINAL LAW.
It is essential to institution of criminal prosecution of which a justice of the peace has jurisdiction that affidavit specified by statute be filed, and if the justice is without jurisdiction circuit court on appeal has none (Code 1942, sec. 1832).
5. CRIMINAL LAW.
Where accused was tried before justice of the peace on affidavit for liquor search warrant, and no affidavit charging any offense was made with the justice, justice had no jurisdiction, and circuit court on appeal had none, and hence conviction would be reversed (Code 1942, secs. 1832, 2614; Const. 1890, sec. 169).
APPEAL from the circuit court of Perry county, HON. F. BURKITT COLLINS, Judge.
E.C. Fishel, of Hattiesburg, and H.D. Young, of New Augusta, for appellant.
The first assignment of error that no affidavit was filed against the appellant charging crime is sufficient for the reversal of this case and the discharge of the appellant. One cannot be charged with crime by merely making an affidavit to procure a search warrant. It is true that the search warrant does authorize the arrest of the appellant, but after his arrest under this search warrant he could have been charged with any one of several crimes, some of which are felonies.
It was necessary for an affidavit charging crime to have been filed in this cause in order for the court to obtain jurisdiction of the offense and of the defendant.
Bigham v. State, 59 Miss. 529; Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505; Code of 1930, Sec. 2098; Constitution of 1890, Secs. 26, 27; 2 C.J.S. 939, Sec. 12; 14 Am. Jur. 852, Sec. 126.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
Upon the examination of the record herein, there is no affidavit or indictment charging the appellant with any violation of the law. Mr. C.C. Dearman, clerk of the circuit court of Perry County, Mississippi, upon inquiry being made, advises me that no affidavit was filed charging the appellant with crime in the justice of the peace court; therefore, the record cannot be perfected.
Counsel for appellant's first assignment of error is that it was error for the court to assume jurisdiction of the cause for the reason that no affidavit charging the crime had been filed, which assignment we must confess is well taken.
Morris v. State, 118 Miss. 605, 79 So. 811; Hall v. State, 91 Miss. 216, 44 So. 826; Woodson v. State, 94 Miss. 370, 48 So. 295; Bramlette v. State, 193 Miss. 24, 8 So.2d 234; Ivy v. State, 141 Miss. 877, 106 So. 111; Coulter v. State, 75 Miss. 356, 22 So. 872; Bigham v. State, 59 Miss. 529; 22 C.J.S. 457, Criminal Law, Sec. 303.
An affidavit for a search warrant was made before a justice of the peace, under Section 1975, Code 1930, Section 2614, Code 1942, — in the chapter on Intoxicating Liquors, — and the warrant was issued and served. In the search intoxicating liquor was found, and appellant was arrested and gave bond. On the third day thereafter, appellant was tried by the justice of the peace and was convicted, and on appeal to the circuit court he was again convicted, and he has appealed to this court.
No affidavit charging a specific offense, or any offense, was made and lodged with the justice of the peace, but appellant was tried on the affidavit made for the search warrant. The Attorney-General properly confesses error.
A criminal prosecution is not begun by the affidavit for, and the issuance and execution of, a search warrant. A search warrant is a preliminary or else an ancillary writ. It is not a part of a search warrant, or the proceedings under it, to try the person in whose possession the contraband described in the warrant affidavit was found, but an additional affidavit, or an indictment, must be made or obtained charging the person with the particular crime of which the evidence indicates he is guilty. Cornelius Search and Seizure (2d Ed.), p. 604. This is demonstrated by the fact that search warrants are often based upon two or more statutory grounds in the disjunctive, as validity may be done, Banks v. City of Jackson, 152 Miss. 844, 120 So. 209, and as was done in the case now before us; but a defendant may not be put to trial on two or more charges in the disjunctive. 31 C.J. 663.
Moreover, the affidavit for the search warrant does not conclude with the averment that appellant had committed the offense or any offense "against the peace and dignity of the state," which, under Section 169, Const. 1890, is an essential allegation in an indictment or affidavit charging the commission of a crime — when not so averred, the affidavit may as well never have been made so far as concerns a criminal charge. Clingan v. State, 135 Miss. 621, 100 So. 185, and cases therein cited. This formal conclusion constitutes the hallmark setting apart and distinguishing a criminal charge from an information, Prine v. State, 143 Miss. 231, 108 So. 716, and other preliminary or ancillary charges; and that it is no empty requirement is illustrated by the case now before us.
It is essential to the institution of a criminal prosecution of which a justice of the peace has jurisdiction that the affidavit specified by Section 2098, Code 1930, Section 1832, Code 1942, be made and filed, without which the magistrate has no jurisdiction to proceed with a trial, and being without jurisdiction the circuit court on appeal has none. Bramlette v. State, 193 Miss. 24, 8 So.2d 234. It follows that the judgment and sentence must be reversed and vacated.
Reversed and remanded.