Summary
In Goss v. State, 187 Miss. 72, 192 So. 447, it was contended that the trial court should have excluded all of the evidence and granted the defendant a peremptory instruction because the officer who made the affidavit did so upon information furnished him by one who was not a credible person.
Summary of this case from Harper v. StateOpinion
No. 33737.
December 11, 1939. Suggestion of Error Overruled January 8, 1940.
1. INTOXICATING LIQUORS.
The issuance of a search warrant by a justice of the peace on affidavit of officer who had information from a bootlegger whom the officer regarded as a credible person that officer would find whisky in certain corner of defendant's kitchen was an adjudication that there was probable cause for issuance of warrant.
2. INTOXICATING LIQUORS.
An adjudication by justice of peace that there was probable cause for issuance of search warrant was conclusive and could not be attacked collaterally upon issue between state and defendant as to guilt or innocence of defendant charged with having intoxicating liquor in his possession.
3. CRIMINAL LAW.
Evidence procured by the state in pursuance of a search under a warrant issued by justice of peace is admissible against the defendant, where competent and relevant.
APPEAL from circuit court of Attala county; HON. JNO. F. ALLEN, J.
D.H. Glass and G.S. Landrum, both of Kosciusko, for appellant.
It is the contention of appellant, Velma Goss, that the opinion handed down in the case of McGowan v. State in 185 So. 826 controls this case. In the McGowan case one Daniels told the constable and sheriff that McGowan was to bring some liquor through Jefferson Davis County, and these officers made a search of McGowan's car and found the liquor, the search being made without a search warrant. The court reversed and remanded the McGowan case for the reason that the information received by the officer was not such information as would justify such search; that the information had to be received from a person who knew what was told to be true and who was a credible person worthy of belief of such nature as to convince an ordinarily reasonable man that he was telling the truth. The record showed that Daniels was a confirmed bootlegger and had been convicted numbers of times for violation of the liquor laws. In this case now before the court, one Singleterry told the deputy sheriff that appellant unlawfully possessed intoxicating liquors, and on this information an affidavit for search warrant was sworn to and a search warrant issued to search the premises of appellant herein. The proof showed that Singleterry was a confirmed bootlegger and had been fined numbers of times for violating the liquor laws. Under the cases cited in the McGowan opinion, the information must be within the knowledge of the informant and must amount to probable cause before a legal search warrant can issue. Mere rumor does not constitute probable cause and is not sufficient. The law requires the same positive information from a credible person to authorize the issuance of a search warrant, as is necessary to make a search without a search warrant. The facts given the officer must be shown to have been within the knowledge of the informant and the record of testimony in the case must affirmatively show this fact. In addition to the failure of the state to show that Singleterry, the informant, knew that appellant had the liquor and that he was a credible person whom any reasonable person would believe, the appellant showed by E.C. Spain, a merchant in Kosciusko that Singleterry's reputation for truth and veracity in this community, at that time, was bad. This evidence of his reputation was in addition to the fact that the deputy sheriff testified that he had been in court several times for violating the liquor laws; in fact, at that very term of court, the informant, Singleterry, had pleaded guilty to possessing unlawfully intoxicating liquors.
The appellant submits that the search was not authorized and any evidence obtained by reason thereof is incompetent and that the court erred in overruling the timely objections of appellant in the lower court and the court also erred in overruling the motion of appellant to exclude the testimony and in refusing the instruction requested by appellant to direct the jury to return a verdict of not guilty. W.D. Conn, Jr., Assistant Attorney-General, for the State.
In the case at bar an officer made an affidavit for a search warrant and procured one for the search of appellant's residence. The search was made and liquor was found. At the trial defendant sought to show that the information upon which the officer acted was not sufficient. He relies on the McGowan case, 185 So. 826. The trial court, acting on this decision, required the state to show what information the officer had and from whom he got it prior to the time he made his affidavit for a search warrant. We think appellant and the trial court have misconceived the effect of the decision in that case. There was a search of an automobile without a warrant, but upon alleged probable cause. The court examined the facts of this case and held that probable cause for such search did not exist. We do not construe the McGowan decision as in any wise overruling or modifying the rule heretofore adopted and enforced in this state to the effect that when a search warrant has been issued, such issuance is a conclusive adjudication of the existence of probable cause and cannot thereafter be inquired into.
Mai v. State, 152 Miss. 225, 119 So. 177; Sykes v. State, 157 Miss. 600, 128 So. 753; Castellucio v. State, 115 Miss. 516, 146 So. 599.
Argued orally by Scott Landrum, for appellant, and by W.D. Conn, Jr., for the state.
Appellant was convicted in the lower court of having intoxicating liquor in his possession.
The evidence against him was obtained by officers of the law, by search of his premises, who found twenty-three bottles of whisky in a brick vault at the northeast corner of appellant's kitchen.
The officers made the search after making affidavit and procuring a search warrant issued by a justice of the peace. On the trial there was no objection to the form or substance of the affidavit and writ.
On the trial the court granted to appellant a preliminary hearing and required the district attorney to go into the question of the source of information and credibility thereof upon which the officer made the affidavit and obtained the search warrant. This evidence showed that the officer had his information from a bootlegger whom the officer regarded as a credible person. He stated that this informant told him he would find whisky at the northeast corner of appellant's kitchen.
The appellant attacked by his evidence the credibility of the person who gave the information to the officer upon which he made the affidavit for the search warrant. All this evidence went to the jury, and the court submitted the validity or not of the search warrant to the jury.
It is now contended that the court below should have excluded all the evidence and granted him a peremptory instruction because the officer who made the affidavit did so upon information furnished him by a person who was not a credible person.
He further seems to contend that for this reason the search was illegal though made upon a search warrant duly served on the appellant before the search was instituted by the officer of the law.
Appellant relies upon the case of McGowan v. State (Miss.), 185 So. 826. In that case the Court was dealing with a case where the evidence was procured by the officers of the law without a search warrant and probable cause under such circumstances. That case does not deal with a search made by virtue of a valid search warrant issued by an officer authorized so to do upon an affidavit made before him in conformity to law and our statute, such as we have here.
The issuance of the search warrant by the justice of the peace in the case at bar was an adjudication that there was probable cause therefor. Castellucio v. State, 165 Miss. 516, 146 So. 599.
This adjudication was conclusive and could not be collaterally attacked, as here upon the issue between the State and the appellant as to the guilt or innocent of the accused. See Mai v. State, 152 Miss. 225, 119 So. 177, 178. In that case this Court said "We hold that, as between the state and the defendant, a judicial finding of the officer issuing the warrant, of the existence of probable cause therefor, is conclusive, and therefore cannot be inquired into; and evidence procured by the state in pursuance of a search under such a warrant, where competent and relevant, is admissible against the defendant. Those decisions of our court, holding that, in cases where the search was authorized by law, upon probable cause, without a search warrant, the defendant on his trial, was entitled to controvert the state's claim of probable cause, are not in point."
This holding was approved in Sykes v. State, 157 Miss. 600, 128 So. 753. The McGowan case, supra, is not in point here as distinctly pointed out above. In the case at bar the search warrant spoke conclusively probable cause, while in the McGowan case the state relied upon probable cause for a search without a warrant therefor, and this court examined the facts and found probable cause for the search was not shown.
Affirmed.