Opinion
No. 32884.
October 11, 1937.
1. INTOXICATING LIQUORS.
In prosecution for possessing intoxicating liquors, whether accused had whisky and champagne in her possession was for jury.
2. SEARCHES AND SEIZURES.
As between state and defendant, judicial finding of justice of the peace issuing search warrant of existence of probable cause therefor was conclusive and could not be inquired into.
3. INTOXICATING LIQUORS.
Affidavit charging accused with unlawfully having in her possession intoxicating liquors contrary to form and statute in such case made and provided and against peace and dignity of city of Aberdeen was insufficient because it did not charge in form or substance that any ordinance of the city of Aberdeen had been violated as against contention that words "contrary to form and statute in such case made and provided" and "against city of Aberdeen" were equivalent to requisite charge.
APPEAL from circuit court of Monroe county. HON. THOS. H. JOHNSTON, Judge.
McFarland Holmes, of Aberdeen, for appellant.
We desire to state to the court at the outset that we are familiar with the decisions of this court in the following cases: Mai v. State, 152 Miss. 225, 119 So. 177; Sykes v. State, 157 Miss. 600, 128 So. 553; both of which hold that as between the State and the defendant, the judicial finding of the officer issuing the search warrant, of existence of probable cause is conclusive and that this court has held that the question of probable cause cannot be inquired into after the search warrant has issued.
We submit that it is the law in Mississippi that when a credible person makes an affidavit even on information and belief that the law is being violated, and prays for a search warrant, that it is the duty of the Justice of the Peace or Mayor with whom the affidavit is filed to adjudicate probable cause, basing his adjudication solely on the affidavit of a credible person that he has reason to believe, and does believe, that the law is being violated; but where the Mayor or Justice of the Peace examines the party who made the affidavit and finds that the affidavit is based not on the evidence of credible persons, but on rumors coming from irresponsible parties (the riff-raff of Aberdeen), people who are drunk and are under arrest, who repeat these rumors to the marshal, and other like irresponsible statements such as came from the undercover man, the Mayor should have known that it would be improper for him to issue a search warrant on such evidence, and he should have refused to issue the search warrant in this case.
The distinction between the case at bar and the two cases cited above is clear, and the constitutional provisions were intended to protect the citizens of this state against just such practice of abuse as is illustrated in this instance.
Section 23 of the Constitution of the State of Mississippi and Article 4 of the Constitution of the United States of America both provide that "no warrant shall be issued without probable cause," the purpose of these provisions being to protect the citizens of the State and the United States from unreasonable search and seizure of their persons, houses and possessions.
The law does not authorize an officer to make a search on mere information of the informant, but the information must be communicated as a fact within the knowledge of the person communicating the information. In other words, a search warrant is not issued except on information amounting to probable cause, and mere rumor is not sufficient to constitute probable cause.
Elardo v. State, 164 Miss. 628, 145 So. 615.
If this court continues to hold that the judicial finding of probable cause by an illiterate or uninformed Mayor or Justice of the Peace, one not versed in the law, is conclusive and cannot be questioned in any court, then these rights, which this court has held in the above case to be so sacred in the eyes of the law and to be the foundation and super-structure of our government and the fundamental rights of citizens, mean nothing, and the unrestrained power of the officer issuing the search warrant to adjudicate probable cause when no probable cause exists, although said by this court to be one from which great evil will flow and one that is most dangerous to the general welfare of the public, can never be curbed, and the constitutional provisions against search and seizure except on probable cause are mere nullities.
Statutes providing for the issuance of search warrants must be strictly construed.
Elardo v. State, 164 Miss. 628, 145 So. 615; 27 A.L.R., pages 744-750, sec. 2; State of Wyoming v. Peterson, 13 A.L.R., 1284; Loeb v. State, 133 Miss. 883, 98 So. 449.
We submit that if a defendant whose automobile has been seized without a warrant is entitled to inquire into the reasonableness of a search or seizure, certainly a defendant who is making no effort to leave the jurisdiction of the officer who has procured a search warrant without probable cause should be entitled to the same benefits that this court awards to the owner of an automobile which has been searched without a warrant.
Moore v. State, 138 Miss. 116, 103 So. 483; Crestman v. State, 148 Miss. 673, 114 So. 748; McNutt v. State, 143 Miss. 347, 108 So. 721; Ingram v. State, 111 So. 362.
Although this prosecution is styled the City of Aberdeen v. Mrs. Mary Johnson, the general affidavit made before R.A. Pullen, Mayor of the City of Aberdeen, Mississippi, and ex officio justice of the peace of Monroe County, Mississippi, does not charge the appellant with a violation of any city ordinance, nor was said affidavit ever filed in the court of R.A. Pullen, Mayor of the City of Aberdeen, and Ex Officio Justice of the Peace of Monroe County, Mississippi.
The court will note from a reading of this affidavit that we are correct in our statement that the affidavit does not charge the appellant with a violation of any city ordinance, and that the affidavit was not marked filed either with the Mayor of the City or with the Mayor as Ex Officio Justice of the Peace of Monroe County, Mississippi. This is a fatal defect, as was held by this court in the case of Alexander McAlister v. City of Moss Point, 96 Miss. 686, 51 So. 403.
Telheard v. City of Bay St. Louis, 87 Miss. 508, 40 So. 326.
Counsel for the City of Aberdeen may contend that the words, "Contrary to form and statute in such case made and provided, and against the peace and dignity of the City of Aberdeen," cure this defect in the affidavit; but this court has held in the case of Dennis v. Town of Walnut Grove, 157 Miss. 797, 123 So. 557; where the affidavit properly charged the violation of a municipal ordinance, but concluded with the words, "Contrary to ordinances of said town, contrary to the statute made and provided in such cases, and against the peace and dignity of the State of Mississippi," that the language in the affidavit above quoted, "Contrary to the statute made and provided in such cases," was surplusage. The use of the words in the affidavit in the case at bar, "Contrary to the form and statute in such case made and provided" are, under this decision, surplusage and allegations of matter wholly foreign and impertinent to the cause and, therefore, cannot be regarded as having any meaning as far as the affidavit in the case at bar is concerned. So the use of the words, "Contrary to the form and statute is such case made and provided" being surplusage in an affidavit wherein the appellant is being tried for a violation of a municipal ordinance, the word "Statute" in this phrase cannot be taken to mean "ordinance," and, there being no charge in the affidavit that the defendant violated any municipal ordinance, the affidavit is fatally defective, and appellant is entitled to have this case reversed and dismissed.
2 Bishops New Criminal Procedure, page 471.
We earnestly submit that it will be the duty of the court, because of this fatal defect in this affidavit, to reverse this case and discharge the appellant.
None of the witnesses who testified for the city testified that the whiskey found in the basement of the White Rock was in the possession of Mrs. Mary Johnson, but on the other hand, testified that at the time the whiskey in the basement was broken, Mrs. Mary Johnson was on the first floor of the building occupied by the White Rock and could not possibly have broken the whiskey, and that it was broken by someone else.
Thos. F. Paine, of Aberdeen, for appellee.
Counsel for appellant under their first and main assignment of error devoted nineteen pages of their brief to an attack upon the action of the court in refusing to exclude from the jury the search warrant and the evidence secured under said search warrant for the alleged reason that the affidavit upon which the search warrant was issued and the search warrant itself was issued without probable cause. And the appellant is, of course, confronted with the long line of decisions in this state holding that the judicial finding of the officer issuing the search warrant of the existence of probable cause is conclusive. And the question of probable cause cannot be inquired into after the search warrant is issued and appellant attacks these decisions and seeks to have this court reverse them.
This affidavit recited that the offense was committed in the City of Aberdeen, Mississippi, and was contrary to the form and statute in such case made and provided and against the peace and dignity of the City of Aberdeen, Mississippi. This was sufficient to inform the defendant that she was being charged with the possession of intoxicating liquor in the City of Aberdeen, Mississippi, on the 12th day of February, 1937, contrary to the form and statute in such case made and provided and against the peace and dignity of the City of Aberdeen, Mississippi. The fact that the affidavit failed to charge that the violation of the law was contrary to the ordinance and against the peace and dignity of the City of Aberdeen, Mississippi, is not such an omission as will entitle the appellant to claim that the affidavit is void and that she was not fully advised of what charge was being made against her and certainly a conviction under this affidavit could be plead by her in the event of any other proceeding against her for this same offense. She could not be tried twice for this offense as the affidavit fully discloses the fact that the offense was charged to have been committed in the City of Aberdeen, Mississippi, and was in violation of the statute and against the peace and dignity of the City of Aberdeen.
The use of the word "statute" in this affidavit in connection with the other parts of the affidavit clearly indicates that appellant was charged with the violation of the ordinance of the City of Aberdeen, Mississippi, and that the offense was committed in the corporate limits of the City of Aberdeen, Mississippi. It is true that it may have been better to have used the word "ordinance," but we submit that the law has been complied with when the appellant was given sufficient notice by the affidavit of the charge against her and of the fact that she was to be tried for a violation of the ordinance of the City of Aberdeen, Mississippi, so that a conviction under this affidavit could be plead by her afterwards in any other proceeding against her for the same offense.
Appellant was convicted before R.A. Pullen, Mayor of the City of Aberdeen, and ex officio justice of the peace of Monroe County, of having whisky and champagne in her possession. In that court she was sentenced to pay a fine of $500 and to serve three months in the county jail. Appellant prosecuted an appeal to the circuit court where she was again convicted and a like sentence imposed, but upon complaint of appellant the circuit court modified the sentence and required her to pay a fine of $500 and serve ninety days in the Aberdeen city jail.
We deem it unnecessary to state the evidence, and think it sufficient to say that there was a conflict in the evidence, which was for the jury on the issue of whether or not appellant had whisky and champagne in her possession.
In the court below the appellant offered evidence which she contends establishes that Pullen, the mayor and ex officio justice of the peace, issued the search warrant without probable cause. A motion to quash the search warrant was overruled, and the appellant objected to the evidence upon the ground that the search warrant was issued without probable cause and the evidence obtained thereby was incompetent. There is no objection to the form or substance of the affidavit and the search warrant. The court below held that the finding of the mayor and ex officio justice of the peace was conclusive as between the state and the defendant named in the search warrant.
It is conceded by counsel that unless we shall now determine to overrule Mai v. State, 152 Miss. 225, 119 So. 177, and Sykes v. State, 157 Miss. 600, 128 So. 753, the action of the court below is correct. We decline to overrule these cases. In the Mai Case the fact that other courts held a different view was given due consideration. We are content and satisfied with these decisions.
The appellant was tried in the inferior court and in the circuit court upon the following affidavit:
"General Affidavit
"State of Mississippi "Monroe County
"Before me, R.A. Pullen, Mayor of the City of Aberdeen, Miss., and ex officio Justice of the Peace of said county T.F. McDuffie makes affidavit that Mary Johnson did on or about the 12th day of Feb., 1937, in the County aforesaid in said City of Aberdeen, Miss. did unlawfully have in her possession intoxicating liquors, to-wit: one pint of whiskey and one quart of champagne, contrary to the form and statute in such case made and provided, and against the peace and dignity of the City of Aberdeen, Miss.
"[Signed] T.M. McDuffie
"Sworn to and subscribed before me, this 12 day of Feb., 1937.
"R.A. Pullen "Mayor of City of Aberdeen, Miss. and Ex Officio Justice of the Peace, Monroe County, Miss."
The affidavit does not appear to have been filed in any court. In this court appellant, for the first time, contends that the affidavit did not charge a crime against the city, nor did it contain the language "against the ordinances of the City of Aberdeen." Counsel for the city undertake to uphold the affidavit on the ground that the words "contrary to the form and statute in such case made and provided, and against the peace and dignity of the City of Aberdeen, Miss.," are equivalent to the requisite charge that it was contrary to the ordinances of the City of Aberdeen. There is no merit in the city's contention. The language quoted is not subject to the construction it desires to place thereon. The affidavit does not charge in form or in substance that any ordinances of the City of Aberdeen had been violated. We regret that this case must be reversed because of the omission, but in the case of Alexander McAlister v. City of Moss Point, 96 Miss. 686, 51 So. 403, a case wherein the affidavit failed to charge the violation of any municipal ordinance, this court held that the trial in the lower court was a nullity. Also see the cases of McAlister v. City of Moss Point (Miss.), 51 So. 404, and Washington v. State, 93 Miss. 270, 46 So. 539.
Reversed and remanded.
McGehee, J., did not participate in the decision of this case.