Goffredo v. State ( 1927 )

^* Corpus Juris-Cyc. References: Criminal Law, 16 C.J., p. 785, n. 68; p. 1170, n. 24; 17 C.J., p. 288, n. 67; Intoxicating Liquors, 33 C.J., p. 678, n. 33; p. 680, n. 74; p. 683, n. 12. On power of justice of the peace to issue warrant limited to what is conferred on him by statute, see 24 R.C.L. 706; 3 R.C.L. Supp. 1383; 4 R.C.L. Supp. 1552. As to right of officer in executing criminal process to take possession of evidentiary articles, see annotation in 18 L.R.A. (N.S.) 253; L.R.A. 1916C, 1017; 15 R.C.L. 414; 6 R.C.L. Supp. 916. As to whether drinking intoxicating liquor by juror vitiates verdict, see 16 R.C.L. 318. Appellants were convicted of the unlawful possession of intoxicating liquors and fined two hundred dollars and sentenced to serve 60 days in jail, from which they appealed to this court. Appellants live in the suburbs of the town of Friars Point in Coahoma county, and the evidence upon which the prosecution was based was obtained by a search warrant issued upon the affidavit of O.H. Johnson, who appeared before a justice of the peace of the Fourth supervisor's district, in which the city of Clarksdale is situated, and made affidavit that he had reason to believe, and did believe, that "intoxicating liquors are being manufactured or possessed, sold or offered for sale or given away, in violation of law, in the dwelling house, outhouses, on the premises, or in the automobiles or other vehicles used or occupied by, and on the person of, Felice Goffredo . . . at building occupied by him on lot 5, block 112 of the Bobo addition to the town of Friars Point, Miss., and building on lot 1, 125 x 140 on end of block 113 of said addition," and that this information is founded upon credible information, and that affiant was informed by a credible person that such was a fact. The justice of the peace thereupon issued said search warrant, addressed to any lawful officer of Coahoma county, reciting that O.H. Johnson has this day made complaint on oath that he has reason to believe, and does believe, that intoxicating liquors are being manufactured, possessed, etc., following the affidavit, and commanding the officer to search the dwelling house, outhouses, premises, etc., described in the warrant and affidavit, and to bring them before J.R. Alcorn, justice of the peace, on January 27, 1926, together with such other parties as may be in possession or control thereof, having then and there this writ. Thereupon the officers went upon the premises occupied by appellants and served the search warrant upon Felice Goffredo, and, proceeding to search, found in the residence certain intoxicating liquors. They found other intoxicating liquors at other points on the premises and proceeded to destroy some of them.

While the search was going on, Mrs. Felice Goffredo started with a bottle of intoxicating liquor to secrete or hide it. The officer called to her to hold on, and went and took it from her. The bottle of whisky was not concealed by her, but was in her hand visible to the eye. As to different liquors found, both appellants admitted to the officers that same were their personal property, Mrs. Goffredo admitting that she owned and possessed some of them and Mr. Goffredo admitting his ownership of others. When the evidence was offered, it was objected to on a number of grounds, one being that the statute authorizing the issuance of a writ of this kind says that upon the affidavit of a credible person that he has reason to believe and does believe that intoxicating liquors are in the possession, etc., that a search warrant shall issue thereupon, and that the affidavit and warrant in this case do not so recite that Johnson, who made the affidavit, was a credible person, and that the statute must be strictly complied with.

While we think the warrant should properly describe affiant as being a credible person, still we think that where an officer taking an affidavit acts upon it and issues the warrant according to it, that he adjudges the affiant as being a credible person, and adjudges by issuing the warrant that he believes the information amounts to probable cause. It would be unusual for an affiant to describe himself as being a credible person, and this is the first time, so far as the writer of this opinion is aware, that the question has been raised that the warrant must show upon its face, or recite therein, that the affidavit was made by a credible person. The affiant testifies in his affidavit that the information furnished was credible and was given him by a credible person, and, taking all the evidence in the record, we are satisfied that affiant himself was a credible person. It is true that proceedings to search houses and effects are largelyex parte, although they are judicial in their nature, and the statute should be followed in all essential particulars to give validity to the proceeding. We think, however, that in the present case, there is no merit in this contention.

It is next contended that the warrant is void because issued by a justice of the peace in the district of Coahoma county in which Clarksdale is situated, and made returnable to a justice of the peace in another district of said county, and that the act of the legislature dividing Coahoma county into two judicial districts, being chapter 93, Laws of 1892, section 15, of said act, provides as follows:

"All crimes and misdemeanors hereafter committed, or charged to have been committed after the passage of this act, shall be cognizable only in the proper court of the district in which the offense may be committed, and such court shall have jurisdiction of the same."

This section has reference to the jurisdiction of the offenses upon the merits, and does not refer to the mere taking of an affidavit and procedure under search and seizure provisions of law. Section 2223, Hemingway's Code (section 2724, Code of 1906), provides as follows:

"The jurisdiction of every justice of the peace shall be co-extensive with his county; and he may issue any process in matters within his jurisdiction, to be executed in any part of the county."

This court has held in proceedings heretofore that the mayor of a municipality may issue a warrant to be served in territory outside the municipality and returnable and triable before the officer of the district wherein it is to be executed. Falkner v. State, 134 Miss. 101, 98 So. 345.

The appellant has not referred to any other provision of the law to sustain his contention except the section above quoted of the act dividing Coahoma county into two judicial districts. We therefore hold that it was lawful for the justice of the peace to issue a search warrant to be served in and returnable before a justice of the peace in another district.

It is also objected that it was error to admit evidence that liquors were taken from the possession of Mrs. Goffredo because no search warrant had been issued to search her property, and that it would not lie to search her person, and that the officer would not have known that the bottle contained liquor until and unless he seized it and tested it to find out by some lawful method. The facts taken together, we think, all show that it was an offense committed in the presence of the officers. It will be noted that the officers were searching the house for intoxicating liquor and had found some liquor therein; that this liquor was in a bottle and visible to the eye; and that an attempt was being made to secrete it from the officers then searching and who had already found liquor.

All these circumstances, taken together, make it clear, we think, that the offense was being committed in the presence of the officer, and they had a right to seize the contraband liquor.

It is also assigned as error that when the cause came on for trial a motion for a severance was made by one of the parties, and that the county attorney was present in court when this motion was made, and did not resist, and the court ordered the severance, and entered an order upon the minutes of the court to this effect, but that thereafter the district attorney came in and moved the court to set aside the granting of the order of severance, setting up as his reason that the term of court was drawing to a close and they would not have time to try all misdemeanors separately and that it would mean unnecessary and additional expense to do so, and then the court announced that he would set this order aside, and proceeded, over the objection of appellants, to try appellants jointly, although no order to this effect was entered on the minutes.

Looking through the entire record, we do not see that the rights of appellants were prejudiced by the court's trying them jointly. The court had full control over its proceedings during the term and could have set aside an order at any time in the term, and the effect of trying persons jointly, which it had a right to do, was equivalent to a formal setting aside of an order, and the record shows affirmatively that the court tried the parties jointly, and it was done over the objection of appellants on the ground they were entitled to a severance. We do not think there is reversible error, from the facts contained in this record, in the trying of appellants jointly.

It is also assigned as error that during the trial in the lower court, on Friday afternoon, the jury were instructed to report back to the court the following morning for argument of the case, and were allowed to separate, and during that period of separation some of the jurors attended a party where intoxicating liquors were imbibed, and became intoxicated. It appears, however, that the following morning the jurors were all in their places duly sober, and were not shown to be incapacitated, to perform their duties. While it is highly improper for jurors who are allowed to separate to become intoxicated, still we think this fact alone, where jurors are not engaged in any of their functions as jurors, and not considering cases as a body, and where no improper attempt was made to influence the jurors is shown, and there is nothing to show that the intoxication had any effect on the jurors' act or opinion, we would not reverse the case because of this. This matter was not discovered until after the trial of the case had been completed, and there is nothing in the record, we think, to indicate that the intoxication of either of the jurors affected his mind or attitude toward the appellants. Certainly, where one party is dealing in liquor and another drinking it there would be no undue unfriendliness between the two, such as would indicate that a verdict was corrupt or disturbed by ill feeling or passion.

If there was any proper showing of harm to appellants, we would unhesitatingly set aside the conviction, but in the absence of such showing we are constrained to let the conviction stand. The judgment of the lower court will be therefore affirmed.

Affirmed.