Opinion
April 11, 1949.
1. Searches and seizures — owner of property not necessary to be named in affidavit or warrant.
It is not necessary that the name of the owner of the property shall be shown in the affidavit, or in the warrant, for the search of premises for stolen articles, nor is it necessary that the affidavit be marked "filed" before the warrant could issue. Secs. 2576 and 1812, Code 1942.
2. Searches and seizures — failure to make a return on the search warrant, effect of.
The officer's return on a search warrant is a ministerial act which may be performed later, and a failure to make a return upon a search warrant, properly issued and properly served, does not invalidate the search or make the testimony incompetent as to articles recovered by the search.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Warren County; R.B. ANDERSON, J.
Harry K. Murray and Vance W. Good, for appellant.
The affidavit for search warrant and the search warrant were introduced as exhibits to the testimony of officer Finane. The affidavit alleges generally "has in his possession certain stolen articles to-wit: blankets, sheets, towels, pillow cases, glasses and other valuables" without specifically designating the property to be seized. And the search warrant followed the same general description as in the affidavit. The affidavit for search warrant was never filed in any court — as testified by officer Finane — and the search warrant does not show that it was ever executed or served. There is no return made to any court on the search warrant. The case was predicated upon the search of the premises of Tom Wince; without the evidence obtained by the search the indictment would never have been returned against the defendant Tom Wince. The affidavit for search warrant and the search warrant fail to follow Sec. 2604, (7), "Affidavit to obtain search warrant" and Section 2605 (8) "Search warrant and capias" of the Mississippi Code 1942. It was a general warrant — that "Defendant has in his possession certain stolen articles to-wit: blankets, sheets, towels, pillow cases, glasses and other valuables." It is to be noted that neither the affidavit nor the warrant contained the allegation of the above cited sections designating the articles as "the property of . . .". In neither the affidavit nor warrant was the name of the owner of the property set out.
In the case of Jones v. State, 177 So. 35, it was held that these sections of the Code must be strictly complied with. The search warrant did not state that Wince had the property of the Valley Dry Goods Company, but a general warrant was issued and all of Wince's property was subjected to the warrant "and other valuables". It is submitted that the warrant was a general warrant and illegal.
And further as to the legality of the affidavit for search warrant and the search warrant and the search herein: The search of defendant's home was illegal, and a violation of his constitutional rights. The evidence was obtained by an illegal search in that no affidavit was ever filed in any court upon which the search warrant was based, and consequently all proceedings based on such a search and seizure were void.
We desire to cite some authorities on this point, although we consider it very elementary law. Underhill's Criminal Evidence, on Searches and Seizures, p. 1442, which cites two Mississippi cases, Carnaggio v. State, 143 Miss. 694, 109 So. 942; and Dawsey v. State, 144 Miss. 252, 110 So. 239.
Other leading authorities lay down practically the same rule relative to the filing of the affidavit for the search warrant, all holding that it is of supreme necessity.
All of the Mississippi cases hold that the statutory affidavit must first be filed before a search warrant can be issued, and this is exactly the rule laid down in Corpus Juris, Ruling Case Law, Cornelius on Searches Seizures and Underhill's Criminal Evidence.
To merely assume, guess or suppose that this affidavit in the Wince case was first filed, does not meet the requirement of the law. It is not shown by the affidavit or any court record, and no testimony was offered on the trial of this case by the state to the effect that the affidavit was first filed before the issuance of the search warrant, or that it was even made before the issuance of the search warrant. So far as the record shows this affidavit was made, or could have been made, after the issuance of the search warrant, and therefore we contend that the entire procedure is invalid and illegal and utterly null and void.
We will now discuss further the Assignment of Error relative to the failure of the officer to make any return on the search warrant. We cite Cornelius, Searches Seizure, Second Edition, page 564, Section 251, page 569, Section 255, and page 578, Section 263.
The Supreme Court of Mississippi held in the case of Washington v. State, 118 So. 719, and in the case of Banks v. City of Jackson, 120 So. 209, that where the officer's return on warrant was defective it was amendable, but in no case has our court ever held that the return may be dispensed with entirely. None was ever made in the Wince case.
The fact that the search warrant was served, a copy given to the defendant and the premises searched, as well as what was found and taken into custody, can only be shown by the return on the warrant. We contend without the return being made, the entire proceeding is void and all evidence with reference thereto incompetent.
The full and complete treatment of the question of return, as stated in American Jurisprudence, Vol. 47, page 527, section 43, is as follows:
"Generally — an officer who acts under a search warrant and seizes property must make return of all the things which he does and which he is commanded to do by the warrant. If he fails to make such a return, the warrant is no protection to him."
Section 44, Volume 47, of American Jurisprudence, page 528, is as follows:
"When not required — No return is required if the goods ordered seized are not found."
It will thus be seen that the one and only one exception for not making a return on the warrant is when the goods or property ordered by the search warrant to be seized are not found, and as stated in Cornelius on Searches and Seizure and the other leading authorities, the commission in those instances is "open to serious question".
This honorable court has held in the case of Cofer v. State, and many other cases: "Statutes authorizing searches and seizures must be construed strictly against the State." Also the same rule of law was announced in the following cases: Tucker v. State, 128 Miss. 211, 90 So. 845; Owens v. State, 133 Miss. 753, 98 So. 233; Livelar v. State, 98 Miss. 330, 53 So. 681; Turner v. State, 133 Miss. 738, 98 So. 240.
There is an unbroken line of authorities that hold that the law applicable to searches and seizures and all proceedings had thereunder must be construed favorably to the person whose home or premises were searched.
The defendant, Tom Wince, did not waive any of his constitutional rights or consent to the search.
George H. Ethridge, Assistant Attorney General, for appellee.
The affidavit for the search warrant conforms to the statute dealing with searches and seizures for and of stolen goods (Sections 2576, 2604, 2605, Code of 1942). These sections are distinguished from a search for intoxicating liquors contained in Sections 2614, 2616, and 2617, Code of 1942. It will also be noted that the affidavit and search warrant were taken before Burkette H. Martin, a police justice and ex officio justice of the peace of the City of Vicksburg. It will also be noted that the conclusion of the search warrant commands the officer to whom it was issued to diligently search for the said goods and chattels and if the same or any part thereof be found that he bring them and the body of Tom Wince forthwith before the undersigned police justice and ex officio justice of the peace of the City of Vicksburg, Mississippi, to be disposed of according to law. These were regular in form and were validly issued and validly served and although the officer did not make his return showing the manner of service and what goods were found by the search yet that was actually done. That is to say, the search was validly made and the goods found at the premises of the appellant were seized and brought to the City Hall and marked and filed and was a substantial compliance with what the law requires. Officers' returns in Mississippi are amendable to disclose the real facts and may be amended any time after the search and at the trial and the statute nowhere requires the affidavit to be filed and the return made within any particular time. Section 1875, Code of 1942, provides:
"If any process be executed, and for want of a return thereof other process be issued, the sheriff or other officer shall not execute the subsequent process, but shall return the first process by him executed, if it be in his possession, and, if it be not in his possession, he shall return the subsequent process, with an indorsement of the execution of the first process, and how it was executed, on which there shall be the same proceedings as if the said first process had been duly returned."
Therefore, the process could be amended at any time to show the real facts and as no point was made at the time the search warrant was introduced to challenge its validity on that ground the same was waived and constitutes a good service although the return was not made on the writ at any time. Section 1873, Code of 1942, provides: "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."
These two sections clearly show that the law in Mississippi is different from what it is in some of the text authorities cited by appellant in his brief. In Carr v. State, 187 Miss. 535, 192 So. 569, the court held: "The issuing of a search warrant on affidavit made by sheriff was res judicata on its sufficiency and could not be inquired into in prosecution for unlawfully transporting liquor, wherein evidence obtained by search was offered."
Therefore, it is immaterial whether the affidavit was filed with the police justice or not. The police justice issued it and commanded its return to be made before him which was done and no complaint was made either at the time of the search or at the time of the trial that it was not filed with the person who issued it. A different question might be raised if the warrant had been made returnable before another justice of the peace; but nevertheless if no objection was made it would be admissible in evidence and here the proof shows what was done by the police officers in making the search and finding the stolen goods. In the Carr case it was held that if the sheriff failed to inform the accused of warrant in sheriff's possession before searching accused's automobile for liquor did not affect the admissibility of the evidence obtained by the search. I submit that this case answers the contention of the appellant but it is by no means the only case holding the same thing.
The assignments of error all seem to be based on the proposition that the affidavit was not filed in the police justice court and that no return on the search warrant was made stating the facts of the search and what was found and seized by the officers. He cites at length from Underhill's Criminal Evidence, page 1442, and quotes that volume as citing Carnaggio v. State, 143 Miss. 694, 109 So. 732; and Dawsey v. State, 144 Miss. 452, 110 So. 239, which cases, I submit, do not sustain his contention. In the Carnaggio case it was held that where an affidavit or search warrant describes the property to be searched as an automobile owned and driven by a named person in the City of Lexington and the search was made of an automobile owned by the said person in which he was riding but out of the city limits of Lexington in the same justice district that the city was in, the search was valid and evidence obtained thereby was admissible. This shows that the rule in Mississippi is not as stringent as the rule in some of the other states and Mississippi preserves strictly the constitutional rights of its citizens. In Dawsey v. State, supra, it was held that a justice of the peace may issue warrant for search for liquor in district of the county other than his and it is not void because made returnable before him in his district. It was held that matters discovered on execution of valid search warrant are admissible. Neither of these cases support the contention of the appellant.
The appellant moved to strike the evidence for the State at the close of the State's evidence, which motion was overruled and the trial proceeded. At the close of the whole case another motion was made to exclude the evidence which was likewise overruled. Both of these motions were based on the fact that the search warrant and affidavit made for the search warrant were not valid. Manifestly, there is no cause for reversing the case under the laws of the state. Our state has dealt so frequently with these questions of search and seizure and every phase of the law dealing with them that there is no need in going to other states for cases or relying on statements made in general treatises on the search and seizure laws. Where our court has decided a matter it should be foreclosed and the court should not be expected to search the authorities in other states under their laws. I would not undertake to answer any of these foreign citations for the reason that our own court has fully dealt with the whole subject and I submit that the judgment must be affirmed.
The appellant, Tom Wince, was jointly indicted with Abe Johnson in the Circuit Court of Warren County on a charge of grand larceny. Appellant was placed on trial after a severance and was convicted by a jury and sentenced to serve a term of four years in the state penitentiary, from which conviction he appeals to this Court.
The larceny charged was from the store of the Valley Dry Goods Company, a Mississippi corporation, domiciled in Vicksburg, Mississippi. There were five floors in said store and on the fifth floor was a storeroom containing goods. Abe Johnson was employed in the storeroom for the purpose of wrapping goods ordered from the store to be delivered by the Company's trucks. He had no authority to sell goods or to take orders for goods or merchandise in said store.
Several of the managers in the store were introduced as witnesses to show that inventory and records of goods were kept by the said store, and that at certain times they missed certain merchandise and that their records did not show these goods to have been sold. They had Abe Johnson arrested. Mr. Otto Finane, captain of detectives of the Vicksburg Police Force, made an affidavit for search warrant before the police justice of Vicksburg, an ex officio justice of the peace, and upon this affidavit search warrant was issued for the search of the dwelling house of Tom Wince and the out houses connected therewith, situated on 602 Clay Street, in the City of Vicksburg, Warren County, Mississippi, for the stolen articles, described in the said search warrant as being blankets, sheets, towels, pillow cases, and glasses, and other valuables. The premises of Tom Wince, who was operating a night club under the name of the Blue Room, were searched under said search warrant by said officer, and some sixteen blankets were recovered in said search. These were then and there tagged and tied up and turned over to the Circuit Clerk and were later identified as the property of the Valley Dry Goods Company, stolen from their storeroom on the fifth floor.
Abe Johnson testified that Tom Wince asked him if he could get him some sheets and blankets "on the quiet"; that he stole the blankets out of the storeroom for Tom Wince and wrapped them up and put them in the delivery for Tom Wince in care of the Blue Room; that he stole the blankets with Tom Wince's knowledge that they were being stolen, and that Tom Wince paid him $25 on one occasion and $10 on another occasion, and the balance of the agreed price in whiskey, which he drank at Tom Wince's place of business. He testified that he stole sixteen blankets for Tom Wince and sent them out in the Valley Dry Goods truck in regular delivery.
Tom Wince denied any knowledge that the blankets were stolen and denied any agreement with Abe Johnson to steal the blankets for him. His defense was that Abe Johnson had told him that he was entitled to a fifteen percent discount as an employee, and that he could sell these blankets to him and have them delivered in the Valley truck.
As above stated, the issue was submitted to the jury and they returned a verdict of guilty as charged.
It is first assigned as error by the appellant that the Court erred in admitting the evidence obtained by the search warrant, over the objection of the defendant, because said search warrant was void in that, first, the affidavit for the search warrant was never filed in any court, and second, that the affidavit does not give the name of the owner of the property, and that, third, the search warrant does not give the name of the owner of the property and does not contain any return by the officer who served it.
Section 2604 of the Mississippi Code of 1942 is as follows:
"State of Mississippi, ____ County.
"Before me, Andrew Sims, a justice of the peace of said county, Edward Nolly makes oath that, on or about the ____ day of ____ 1906, in the said county, a box of candles and a case of brogan shoes, the property of affiant, of the value of one hundred dollars were feloniously stolen, taken, or carried away; and affiant suspects Samuel Miller as the person guilty of said crime, and has reason to believe and does believe that the said stolen articles, or some of them, are now concealed in or about the dwelling house, or outhouses connected therewith, of the said Samuel Miller, in said county; and affiant prays a search warrant to search said premises, and seize the said goods if found, and also the body of said Samuel Miller, to be disposed of according to law.
"Edward Nolly.
"Sworn to and subscribed before me, the ____ day of ____, 1906.
"Andrew Sims, J.P."
It will be noted that this is a form of affidavit and the form contemplates that it is to be made by the owner of the property in that it uses the phrase "the property of affiant." However, Section 2576, of the Code of 1942, provides that the search warrant may be issued on the affidavit of "a credible person." It will be further noticed that under the terms of Section 2576, of the 1942 Code, that it is required only that "the affidavit and warrant must specify the goods to be seized and the person or place to be searched."
The affidavit and the search warrant constitute the legal processes justifying the search of the main premises for the recovery of stolen goods. The purpose of the search warrant is merely to authorize the officer to make the search. It does not charge any person with the crime of larceny of the goods. (Hn 1) There is no good reason to require that the affidavit and search warrant shall show the name of the owners of the property, and we do not think that such a showing in the affidavit and the search warrant is necessary or required by our statutes.
In addition, we do not think it is necessary for the affidavit to have been marked "filed" by the police judge. Section 1812 of the 1942 Code provides that civil cases shall be begun before the justice of the peace by "lodging" with the justice of the peace the evidence of the debt or the statement of the cause of action. Under Section 1812 of the Code of 1942, it is provided that criminal cases are begun by "lodging" the affidavit with the justice of the peace. We find no statute, and our attention has not been called to any statute, requiring a justice of the peace to mark an affidavit "filed," and hence there being no statutory requirement therefor it was not necessary that the affidavit be marked "filed" before the search warrant could issue.
With reference to the return on the search warrant, we wish to call the attention of all officers executing search warrants to the urgent need of making their return on the search warrant, as provided by the law. It is not necessary or proper here for us to pass upon the question of the protection of the officer by the search warrant in cases where he has made no return thereon, and we do not pass upon this question here. We are only concerned with the admissibility of the evidence disclosed by the search in a case where the search warrant does not contain any return by the officer executing it. We find that the rule is well stated in 56 C.J., page 1246, Section 166, as follows: (Hn 2) "The failure of an officer to make a return of a search warrant properly issued and served will not invalidate the search warrant, or a search and seizure made thereunder, even where the statute requires the return within a certain time, the return being merely a ministerial act, which may be performed later. Thus the omission to make a full return is an irregularity that may be corrected on motion. Nor does such a search warrant become void because of an improper return, or error therein, but it may be amended to conform to the facts."
The search warrant in this case was based upon a lawful affidavit, and the search warrant itself was a lawful warrant duly authorizing the officer executing it to make search of the property named therein for the stolen articles described in the warrant. It follows from this that at the time the officer was making the search he was engaged in a lawful act and was doing that which the law justified him in doing. The stolen articles were legally recovered as a result of said search. It would be an anomaly for us to hold that the mere failure of the officer to make his return upon the search warrant would relate back and make unlawful that which the law says was lawful at the time the search was being made and the goods were being recovered. We are unwilling to hold that the failure to make a return on the search warrant invalidates the search and makes the testimony incompetent as to the articles recovered by the search. This is neither good law nor logical reasoning.
It is further assigned as error that the Court erred in overruling the motions of the defendants at the conclusion of the evidence for the State, and at the conclusion of all of the evidence in the case, to exclude the evidence and direct a verdict for the defendant. We find no error in the action of the court in overruling these motions.
The evidence contained in this record is entirely sufficient to support the charge in the indictment, and the jury was justified by evidence beyond a reasonable doubt in returning a verdict of guilty as charged.
We find no error in this record, and the decision of the lower court will be affirmed.
Affirmed.