Summary
In Serio v. City of Brookhaven, Miss., 45 So.2d 257, it was held that the Statute does not require as one of the essential contents of the affidavit that the same shall recite that the affiant is a credible person, but simply provides that upon the affidavit of such a person that he has reason to believe, and does believe, certain facts enumerated in the Statute, the proper officer is authorized to issue a search warrant.
Summary of this case from Harper v. StateOpinion
No. 37443.
March 13, 1950.
1. Criminal procedure — transcript on appeal from police court, amendment.
A police justice, who in making up the transcript of the record of the proceedings in his court for an appeal inadvertently used printed forms for an ex officio justice of the peace, was properly permitted to amend his return when the appeal came on for trial so that his certificate would be by him as police justice instead of ex officio justice of the peace. Sec. 1200, Code 1942.
2. Searches and seizures — description of place or thing to be searched.
Any description of places or things to be searched, which is sufficient to enable the officer to locate them with reasonable certainty is a compliance with constitutional requirement.
3. Searches and seizures — description of property in affidavit for search warrant — sufficiency of, case in point.
A description of property in affidavit for search warrant and in the search warrant as a city lot, 97 by 149 feet, and otherwise gave an adequate legal designation, naming the defendant and authorizing search of the "dwelling house, out-houses, the premises, automobiles or other vehicles owned or used by" the named defendant, the fact being that the described lot was owned by the estate of a family of which defendant was a member, was sufficient, although defendant occupied only a part thereof.
4. Searches and seizures — affidavit for search warrant — credible person as affiant.
It is not required by the statute that the affidavit for a search warrant shall recite that the affiant is a credible person. It is essential, however, that the officer issuing the search warrant shall be able to show, when his right to do so is questioned, that he issued the same upon the affidavit of a credible person.
5. Criminal procedure — verdict in improper form — corrected when and how.
The jury returned a verdict reciting that: "We the jury find the defendant guilty — charge", and the court directed the jury, all members being still present, to retire and put the verdict in such complete form as intended by them, whereupon the jury returned with a verdict written as follows: "We the jury find the defendant guilty as charged". Held that, in view of the statute, the action of the court was proper. Sec. 1515, Code 1942.
6. Jury — member not a qualified elector called by mistake but accepted and served — no ground for a new trial.
When a person, although not a qualified elector, was called by mistake as to his identity, was accepted and served on the jury, no ground for a new trial is thereby furnished. Sec. 264, Const. 1890; Sec. 1762, Code 1942.
7. Searches and seizures — affidavit for search warrant — credible person as affiant.
The affidavit for a search warrant should recognize that the affiant is a credible person, not because the statute requires the affidavit to so state, but because it is the safer practice that the fact of the affidavit having been made by a credible person should be given attestation by the jurat of the officer before whom it is made.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Lincoln County; J.F. GUYNES, Judge.
E.C. Barlow, for appellant.
The Court erred in overruling the objection made by the appellant to the affidavit for search warrant and to the search warrant. The affidavit and the search warrant do not describe any property to be searched, the description merely being 97 feet on South First Street by 148 feet on Warren Avenue. Said affidavit or search warrant does not describe any automobile to be searched whatsoever as required in Sec. 23 of the Constitution, and neither does the affidavit for search warrant or the search warrant comply with Secs. 2614, 2616, Code 1942. Morton v. State, 136 Miss. 284, 101 So. 379; Comby v. State, 141 Miss. 561, 106 So. 827; Miller v. State, 129 Miss. 774, 93 So. 2; Tucker v. State, 128 Miss. 211, 90 So. 845; Smith v. State, 133 Miss. 730, 98 So. 344; Fatimo v. State, 134 Miss. 175, 98 So. 537; State v. Watson, 133 Miss. 796, 98 So. 241; Owens v. State, 133 Miss. 753, 98 So. 233; Butler v. State, 129 Miss. 778, 93 So. 3.
The affidavit and search warrant are void for the further reason that the law requires that the affidavit and search warrant should show that same was made by a credible person. State v. Watson, 133 Miss. 796, 98 So. 241; Turner v. State, 133 Miss. 738, 98 So. 240; Morrison v. State, 140 Miss. 221, 105 So. 497.
The Court erred in overruling objection made by the defendant to the amendment of the affidavit and transcript of record, this case having been tried in the lower court by John W. Boone, ex officio justice of the peace, and the entire record being changed in the circuit court to show that it was tried before John W. Boone, a police justice of the City of Brookhaven, all of which was over the objection of the appellant. Washington v. State, 93 Miss. 270, 46 So. 539; Hudson v. State, 73 Miss. 784, 19 So. 965; White v. State, 95 Miss. 75, 48 So. 611.
No amendment can be allowed without a motion, and order, of the Court properly recorded in the minutes of the Court, and the minutes of the Court in this cause failing to show the motion and order allowing said amendment.
We submit that the recording of same in the minutes is jurisdictional and can be raised for the first time in the Supreme Court. Shreverton v. McLeon Lbr. Co., 120 Miss. 65; Sec. 1665, Code 1942; Hammons v. Gregg Co., 119 Miss. 72, 80 So. 489; Watson v. State, 166 Miss. 194, 146 So. 122.
The Court erred in overruling defendant's objection after verdict when the jury returned a verdict, "We, the jury, find the defendant guilty charged", the defendant immediately raised the question of the Court reconvening the jury after dismissal thereof, and instructing the jury as to what they should do as to their verdict. State v. Chambliss, 142 Miss. 256, 107 So. 200; Ex parte Scott, 70 Miss. 247, 11 So. 657; Ex parte Golding, 148 Miss. 233, 114 So. 385.
The Court erred in overruling appellant's motion for a new trial for reason that the juror who sat in the case as James A. Wallace was in truth in fact not James A. Wallace, but James R. Wallace, all of which was unknown to appellant at the time, the jury was impaneled, and not revealed to appellant or his attorney until after verdict.
We submit that the appellant was entitled to twelve qualified electors to sit as jurors in his case, and by the concealment of this juror as to his identity, and for the further fact that he was not a qualified elector of the county, which was also concealed from the defendant and his attorney, and was not known until after verdict, appellant was thereby deprived of a valuable right, and which was guaranteed to him under Secs. 26 and 31 of the Constitution with reference to a fair and impartial trial, by a duly qualified fair and impartial jury. Nail v. State, 70 Miss. 32, 11 So. 793; Fulcher v. State, 82 Miss. 630, 35 So. 178.
William P. Cassedy, for appellee.
When the police justice prepared his certified transcript of record, it was prepared on a printed form which was originally printed for use by a justice of the peace which is obvious from a glance at the thing itself. When the police justice first prepared this paper which is the certified transcript, it was not correctly or sufficiently prepared to fit the facts. It did not express precisely what had occurred. Subsequently, the City, by its attorney, moved the court to allow this certificate to be corrected to show the true facts, which motion the court allowed. This is in accord with Sec. 1200, Code 1942.
Apparently, no other person has raised this question, at least we can find no case where an objection was made to an amendment which corrected the transcript to conform to the record and make it in accord with the facts. In Green v. Boon, 56 Miss. 617, pending a motion to dismiss an appeal, which motion the circuit court sustained, appellant there offered to introduce the magistrate to amend the affidavit for appeal, in accord with the facts, by affixing the date and his signature. The appellant said the officer's negligence should not affect the rights of a person who did not contribute thereto, but who did all in his power to perfect the appeal. The appellees were insisting that the absence of the magistrate's signature and the date renders the affidavit void, and incapable of amendment. Judge Campbell tersely expressed the opinion of the Court in one sentence: "The Circuit Court should have permitted the amendment of the affidavit for the appeal, and, for refusing it, the judgment is . . . Reversed and cause remanded."
The case at bar presents the peculiar situation where the appellant actually did not want the record perfected. The right of a policeman to amend a return which he made on a search warrant is so fundamental and well established that we would be equally as astonished as we are here of any person questioning the policeman's right to amend. Since the statute specifically gives this right to police justice to amend his return according to the facts, we do not believe appellant's position can be seriously considered. See, also, Sec. 1511, Code 1942.
The appellant insists that it is necessary for the motion, requesting such amendment and the order allowing it, to be recorded in the minutes of the circuit court. This, in our opinion, is not the law. Appellant cites no applicable authority on this point.
The appellant may have been thinking of Secs. 2532, 2533, Code 1942, which require an amendment correcting variances between an indictment and evidence, to be entered on the minutes of the Court, but these do not apply, because it is the later Sec. 2535, Code 1942 which specifically allows amendments to proceedings brought up on appeal to circuit court from the judgment or sentence of a justice of the peace or municipal court. This statute specifies "that the amendment to be made on such terms as the court may consider proper". We submit that this was so done.
Appellant urges that the affidavit and search warrant are void, claiming that there was no showing that affiant was a credible person. We believe this to be a matter which was settled when the police justice issued the search warrant upon evidence there considered. When probable cause was found to exist in the premises. We do not believe this to be a matter which can now be inquired into.
Sec. 2614, Code 1942, reads, in part: "Upon the affidavit of any credible person that he has reason to believe and does believe . . . it shall be the duty . . . to issue a search warrant . . ."
The act of the Court in issuing the search warrant was an expression of his belief in the integrity of the affiant.
The cases which appellant cites concerned other issues and are not in point on this issue.
In the present case at bar, affiant does not swear that he himself is a credible person. We believe to require him to do so would be a little ludicrous. We believe the purpose of the statute was to relieve the Court of any duty to issue such warrant upon the affidavit of a person who was acting maliciously, frivolously, or who was just not worthy of belief. The Court in the case at bar was sufficiently satisfied to issue that warrant. Here the officer does swear that he was informed by a credible person and believed it. Belief, by an officer, based on information from a credible person that a liquor law is being violated, is sufficient to justify the officer in searching without a warrant. Moore v. State, 138 Miss. 116, 103 So. 483.
Does the appellant contend that the police chief is not a credible person? Does the appellant contend that the police justice violated his prescribed duty by issuing a search warrant upon the affidavit of a police chief who was not a credible person? No attempt was made on the trial of the case to attack the credibility of the police chief. There was no evidence offered on the trial of the case that indicated any such disregard of duty by the police justice. Certainly, the appellant would not ask this court to judicially presume that the city police chief is not a credible person. The circuit court held that the judgment of the petitioned officer, the police justice, was sufficient as to the credibility of the affiant, the police chief. Action by the police justice in issuing the search warrant on the basis of the affidavit is certainly of itself an adjudication of the credibility of the affiant, because if affiant were not a credible person, the police justice was under no duty whatsoever to issue the warrant. He did issue it, and in it "doth find that probable cause for the issuance of a search warrant in the premises does exist".
Appellant attacks the validity of the search warrant, saying that the description of the property and automobile to be searched was insufficient.
In the case of Borders v. State, 138 Miss. 788, 104 So. 145, the description of the premises searched was challenged by the appellant who had been convicted of possession of intoxicating liquor. The Court there used these words: "In both the affidavit and the warrant the premises sought to be searched is described as follows: `The dwelling house, outhouses on the premises or in automobiles or other vehicles, used or occupied . . . by Roberta Borders . . . located at or near Pheba in said county.'
"The caption to the affidavit is: `State of Mississippi, County of Clay.' The caption to the search warrant is: `State of Mississippi, County of Clay. To any Lawful Officer of Clay County.'
"The search was made of appellant's home. The premises to be searched, among others, as will be seen from both the affidavit and the search warrant, was the dwelling house of appellant near Pheba, in Clay County. Any description in the affidavit for a search warrant and in the search warrant issued thereon, that points with reasonable certainty to the premises to be searched, is sufficient. Any description of the place or thing to be searched that will enable the officer making the search with reasonable certainty to locate such place or thing is sufficient. Loeb v. State, 133 Miss. 883, 98 So. 458; Matthews v. State, 134 Miss. 807, 100 So. 18. We think the affidavit and search warrant sufficiently described the place searched."
The appellant filed a special bill of exceptions which was signed by the court and in which the appellant especially excepted to certain action by the court after the jury had returned its verdict. The action of the court is set out in the appellant's bill of exceptions. The verdict which was returned by the jury, handed to the clerk who read it in open court was as follows: "We, jury, find the defendant guilty — charge", and was signed by all the jurors. The jurors were discharged, but before they had left the courtroom or the presence of the court, — in fact immediately, — the court called them back. As the court says, on page 78 of the reporter's transcript herein, ". . . they, the jury, still being within the presence of the Court and under the eye of the Court. The court said to the jury `gentlemen, on reading your verdict I find it as follows:' and read the verdict to the jury. `I assumed from the reading of the verdict it was your purpose to find the defendant guilty as charged. If so, it does not so state. I will permit you to retire and rewrite your verdict, to which each member replied in the affirmative.'"
The jury did so and returned with the verdict written as follows:
"We, the jury, find the defendant guilty as charged."
It was signed by each member of the jury. The jury was then polled and each member stated that it was his verdict.
The appellant cites some cases which we do not find to support his position.
Sec. 1515, Code 1942, in part, reads: "If the verdict is informal or defective, the court may direct it to be reformed at the bar, . . ." Sec. 1518, Code 1942, in part, reads: "No special form of verdict is required, . . ."
The appellant attcks the procedure on the basis that the identity of one juror was not the same as the person listed and summonsed. Article 14, Sec. 264, Constitution of 1890, reads: "No person shall be a grand or petit juror unless a qualified elector and able to read or write; but the want of any such qualification in any juror shall not vitiate any indictment or verdict. The legislature shall provide by law for procuring a list of persons so qualified, and the drawing therefrom of grand and petit jurors for each term of the circuit court."
Sec. 1762, Code 1942, states, in part: ". . . the lack of any such qualifications on the part of one or more jurors shall not vitiate an indictment or verdict . . ."
There is no claim in the present case that the juror was not fair and impartial, and the circuit clerk testified that she prepared a list of the juries at the beginning of court and gave a copy to each of the attorneys and that this jury was the jury for the second week of court.
In Tolbert v. State, 71 Miss. 191, 14 So. 462, 42 Am. St. Rep. 454, the Court held: "The mistake as to the juror Archer, whereby one not competent and not drawn, but summoned by mistake, as he had the same name, attended, and was accepted and served, is not ground for setting aside the verdict: Const. 1890, Sec. 264. It is only where that occurs which impugns the fairness of the trial that a ground is presented for a new trial. While it is not surprising that the mistake as to the juror Archer was not discovered, under the peculiar circumstances so well calculated to mislead, it cannot be affirmed that it might not have been discovered by diligence before the jury was impaneled.
"The right of a defendant is to have an impartial jury rather than one composed of particular persons; and, where this right has been enjoyed, there is little cause for complaint, ordinarily, after verdict. An aquittal by such a jury would avail the defendant; and, having had a chance of escape at the hands of the jury, he should not be allowed to profit by an innocent mistake or inadvertence which in fact did him no harm."
A reversal of the conviction in this case is sought on the grounds: (1) that it was error for the circuit court to permit the police justice to amend his certificate to the transcript of the record, (2) that the affidavit and search warrant did not contain a sufficient description of the property to be searched, (3) that neither the affidavit nor the search warrant recited that the affiant was a credible person, (4) that the circuit court erred in reassembling the jury to put its verdict in proper form, after the jurors had been discharged but had not left the courtroom, and (5) one of the twelve jurors was not a qualified elector.
(Hn 1) There was an appeal to the circuit court taken by the appellant, Jimmie Serio, from a conviction in the court of the police justice of the City of Brookhaven, on the charge of an unlawful possession of intoxicating liquors. When the case came on for hearing in the circuit court, it was discovered that a printed form, as ordinarily used by the police justice when acting as an ex officio justice of the peace, had been used by the police justice in certifying to the transcript of the record on appeal from his court. The circuit court, over the objection of the defendant, permitted the police justice to amend the printed form used for certifying to the transcript of the proceedings had before him, which amendment consisted of striking out the printed words "Ex officio Justice of the Peace" as they appeared underneath the signature of the person who had tried the case as police justice, and inserting in lieu thereof the words "Police Justice of said City", the caption of the transcript having been changed from "State of Mississippi" to "City of Brookhaven".
Section 1200, Mississippi Code of 1942, provides, among other things, that a "justice of the peace, mayor or police justice of any city, town or village from whose decision an appeal shall be taken, shall at once transmit to the clerk of that court a certified copy of the record of the proceedings, with all of the original papers and process in the case, and the original appeal-bond given by the appellant, . . . The justice, mayor, or police justice of any city, town or village shall, at all times, be allowed to amend his return according to the facts." In this case, the affidavit to obtain a search warrant, the warrant itself, the affidavit charging the offense, the judgment entered by the court, and the appeal bond to the circuit court all disclosed that the case was tried before the city official as police justice. Hence, the amendment which the circuit court allowed the police justice to make to his certificate to the transcript of the proceedings, was an amendment of his return "according to the facts." He did not amend any of the original papers in the cause, nor the judgment rendered by him, but merely his certificate which certified to the fact that the original papers attached thereto, including the judgment rendered by the officer as police justice, were the original papers in the cause.
We are of the opinion that the amendment was properly allowed, asd that the case of Washington v. State, 93 Miss. 270, 46 So. 539, 540, and other decisions relied upon by the appellant are not in conflict with our conclusion in this regard. For instance, the Washington case merely holds that a mayor may not by his verbal testimony amend a transcript "so as to change it from the actual condition of the book." In the instant case the officer amended the transcript so that it would conform to the actual condition of the record, since he had used a printed form intended for use by an ex officio justice of the peace, and had failed to strike out the words "Ex Officio Justice of the Peace" under his signature and insert in lieu thereof the words "Police Justice".
Second, the appellant contends, as aforesaid, that the description of the property in the affidavit for the search warrant and in the search warrant is an insufficient description under the requirement of Section 23 of the Constitution of 1890 requiring that no search warrant shall be issued without probable cause, supported by oath or affirmation, specifically designating the place to be searched and the person or thing to be seized.
The description is of the premises of the defendant, Jimmie Serio, "located at 97 feet on First Street by 148 feet on Warren Avenue, Lot A, Block 4, Swalm Subdivision", of the City of Brookhaven in Lincoln County, and the search warrant authorized the search of the "dwelling house, out-houses, the premises, automobiles, or other vehicles owned or used by . . . the said Jimmie Serio" located as above stated.
(Hn 2) Any description of places or things to be searched, which is sufficient to enable the officer to locate them with reasonable certainty, is in compliance with the Constitutional requirement. Borders v. State, 138 Miss. 788, 104 So. 145; Banks v. Jackson, 152 So. 844, 120 So. 209; Smith v. State, 187 Miss. 96, 192 So. 436; Matthews v. State, 134 Miss. 807, 100 So. 18; West v. State, Miss., 42 So.2d 751.
(Hn 3) It appears that the Serio family or estate owned a tract of land which was 97 feet in width and fronting on First Street to the east thereof, and 148 feet in depth, bordering on Warren Avenue to the north; that the lot ran east and west; that the defendant, Jimmie Serio, resided on a portion of the lot described as 50 feet on Warren Avenue by 60 feet in depth in the northwest corner of the entire tract, and it was his house, garage, and automobile that were searched and where the intoxicating liquors were found. He readily admitted that the liquor belonged to him. But aside from this, we are of the opinion that the description was sufficient to enable the officer to locate with reasonable certainty the place to be searched and that he did locate the same by means of such description and without difficulty.
(Hn 4) Third, it is contended by appellant, as aforesaid, that the search warrant was invalid because the affidavit therefor did not recite that the chief of police who made the same before the police justice was a credible person. Section 2614, Code of 1942, has the following caption: "Affidavit for search warrant — contents — duty of officer taking affidavit" and the section then provides that: "Upon the affidavit of any credible person that he has reason to believe and does believe: (1) That intoxicating liquor is being . . . possessed at any designated place . . ., which place is to be stated in the affidavit, in violation of the laws of the state; or (2) . . .; or (3) . . .; or (4) . . .", a search warrant shall be issued, etc.
It is to be noted that the statute does not require as one of the contents of the affidavit that the same shall recite that the affiant is a credible person, but merely provides that upon the affidavit of such a person that he has reason to believe and does believe certain facts stated in this Code section, the affidavit shall entitle the proper officer to issue a search warrant. In the case of Winters v. State, 142 Miss. 71, 107 So. 281, it was held that the form of the affidavit prescribed by this statute is not mandatory but simply directory. It is essential, however, that the officer issuing the search warrant should be able to show, when his right to do so is brought into question, that he issued the same upon the affidavit of a credible person.
In Goss v. State, 187 Miss. 72, 192 So. 447, it was held that in a prosecution for unlawful possession of intoxicating liquor, the credibility of the informant and question of probable cause in connection with the search and seizure could not be attacked where a valid search warrant was issued, its issuance being a conclusive adjudication that there was probable cause.
Since Section 23 of the State Constitution provides that "no warrant shall be issued without probable cause, supported by oath or affirmation," and is silent as to the character of person who shall make the affidavit, then it should follow that the holding in the Goss case to the effect that the issuance of the search warrant is an adjudication that there was probable cause would be tantamount to a holding, under Section 2614, Code of 1942, that the issuance of the search warrant is an adjudication that the affidavit on which the warrant is issued was made by a credible person, and especially in the absence of any proof to the contrary. (Hn 5) Fourth, a special bill of exceptions was taken to the action of the circuit court in permitting the jury to reassemble and put its verdict in proper form before they had left the court room or the sight and presence of the court. The trial judge stated to the jury: "Gentlemen, on reading your verdict I find it as follows: `We, jury, find the defendant guilty — charge'", and he read the verdict to the jury. He then stated to them: "I assume from the reading of the verdict it was your purpose to find the defendant guilty as charged. If so, it does not so state. I will permit you to retire and rewrite your verdict", to which each member replied in the affirmative. Thereafter the jury returned with the verdict written as follows: "We, the jury, find the defendant guilty as charged." It was signed by each member of the jury.
We do not think that the first verdict, though in improper form, could be construed to be a finding that the defendant was not guilty. Therefore, the case of State v. Chambliss, 142 Miss. 256, 107 So. 200, is not controlling here, nor are the cases of Ex parte Scott, 70 Miss. 247, 11 So. 657, 35 Am. St. Rep. 649; Ex parte Golding, 148 Miss. 233, 114 So. 385, in view of the different factual situations involved.
Moreover, Section 1515, Code of 1942, in part reads: "If the verdict is informal or defective the court may direct it to be reformed at the bar, . . ."
(Hn 6) Finally, it is contended by appellant, as aforesaid, that the verdict of the jury is invalid because one of the jurors was not a qualified elector. It appears that a summons was issued for James A Wallace, a qualified elector, and was served on James R. Wallace, who was not such an elector. James R. Wallace appeared and served on the jury. There were several James Wallaces in the county, some James A. and some James R. and some James with some other initial. The serving officer testified that he said to the juror, "I have a summons for you", and that he took it, without making any representation to the officer as to his true identity. However, he assumed the role of James A. Wallace when qualifying on the jury, but undertook to justify this by saying that the serving officer had told him that the initials in the process must be wrong; that he had never seen the James A. Wallace for whom the process was intended until the morning of the trial.
However, Article 14, Section 264, Constitution of 1890 provides that: "No person shall be a grand or petit juror unless a qualified elector and able to read and write; but the want of any such qualification in any juror shall not vitiate any indictment or verdict. . . ."
Section 1762, Code of 1942, prescribes the qualifications of jurors, included among which is that he shall be a qualified elector, and then further provides: "But the lack of any such qualifications on the part of one or more jurors shall not vitiate an indictment or verdict."
Then, too, it was stated in the case of Tolbert v. State, 71 Miss. 179, 14 So. 462, 463, 42 Am. St. Rep. 454 that: "It is only where that occurs which impugns the fairness of the trial that a ground is presented for a new trial." In that case a juror who was not competent and not drawn, but summoned by a mistake, was accepted and served. The affidavit and search warrant were sufficient in all respects, the latter was made returnable to a proper date, and the search was validly executed and effectual to disclose ample proof of the defendant's possession of intoxicating liquor, which he claimed as his own, and we find no error in the proceedings.
While it was recognized by the opinion of this Court in the recent case of Turfitt v. State, Miss., 42 So.2d 737, that the affidavit should allege that the affiant is a credible person (since it is contemplated by Section 2614 that a search warrant is to be issued only upon the affidavit of a credible person averring certain facts to exist, and the form of the affidavit that may be used for such purpose is prescribed by Section 2616, Code of 1942, and contains a recital, following the blank space for the name of the affiant, in the words "who is known to be a credible person") these statutes in that regard are merely directory as held in Winters v. State, supra. And it is to be noted that, in the opinion in the Turfitt case, the reversal of the conviction was not predicated on the ground that the affidavit did not recite that the affiant was a credible person, but the affidavit was declared to be fatally defective because it omitted the allegation "that the affiant, if he does not have personal knowledge, has reason to believe and does believe that the offense is being or has been committed."
The fatal omission above mentioned was not made in the affidavit and search warrant in the instant case. On the contrary, the affidavit recites that the affiant "has good reason to believe, and does believe, that intoxicating liquors are being . . . possessed . . . in violation of law . . . and this belief is not feigned of malice against the said Jimmie Serio but is founded on credible information. Affiant has been informed by credible person that such is a fact." Also the search warrant contains the recital that the affiant had made such an affidavit, and further that "the undersigned having examined and considered said affidavit, and also after having heard and considered evidence in support thereof finds that probable cause for the issuance of a search warrant in the premises does exist . . ." And as hereinbefore stated, since the mere issuance of the search warrant has been held by this Court to be an adjudication that probable cause exists for doing so, we think that the issuance of such warrant is likewise an adjudication by the issuing officer that the person making the affidavit therefor is a credible person.
(Hn 7) However, we reaffirm what is said in the opinion in the Turfitt case to the effect that the affidavit should recognize, in compliance with the directory provisions of the statutes, that the affiant is a credible person, not because the statute requires the affidavit to so state, but because it is the safer practice that the fact of the affidavit having been made by a credible person should be given attestation by the jurat of the officer before whom it is made.
From the foregoing views, it follows that we are of the opinion that the judgment appealed from should be affirmed.
Affirmed.
Hall, J., took no part in this case.