Grizzard v. State , 149 Miss. 323 ( 1928 )

^* Corpus Juris-Cyc. References: Searches and Seizures, 35 Cyc, p. 1266, n. 13. As to formalities of administering or making oath, see annotation in 51 A.L.R. 840. The appellant, Aaron Grizzard was convicted of unlawfully having in his possession intoxicating liquors, and from the sentence imposed he prosecuted this appeal.

The testimony upon which the conviction is based, and which was admitted over the objection of appellant, was procured by means of a search warrant which the appellant insists was void. From an agreement dictated into the record by the trial judge, it appears the warrant was originally issued for the search of the home of one Will Rogers, and that:

"The parties went to Will Rogers' house and came back and reported to the justice of the peace the result of their search; that then the witness on whose information they acted stated that they had misunderstood him about the man's name; that the justice of the peace then erased the name of Will Rogers and wrote the name of this defendant in the warrant and redelivered it to the officers; and that they then went and made a search of this man's house."

It will be noted that this agreement does not show that the original affidavit was ever changed by striking out the name of Will Rogers and inserting the name of this appellant, but an inspection of the affidavit as it appears in the record shows that such change was actually made. The agreement in the record does not show that the substitution of the name of this appellant for that of Will Rogers was made at the instance, or upon the request of the original affiant, or that such affiant did any corporal act which would constitute an oath to the affidavit for the search of the premises of this appellant. The agreement merely recites that, when the witness on whose information they acted stated that they had misunderstood him about the man's name, "the justice of the peace then erased the name of Will Rogers and wrote the name of this defendant in the warrant and redelivered it to the officers."

We do not think the facts in this record bring this case within the rule announced in the case of Atwood v. State, 146 Miss. 662,111 So. 865, 51 A.L.R. 836, in which it was held that, where the affiant, in the presence of the justice, signed an affidavit, and the justice thereupon affixed his jurat thereto, and issued a search warrant in proper form, affiant will be held to have taken the oath required under section 23 of the Constitution of 1890. Aside from any question that might arise as to whether or not the affidavit and search warrant became functus officio after the search of the premises therein designated, and could not, by act of the affiant, be vitalized so as to authorize the search of other premises, we think the agreement as to what transpired fails to show that the original affiant did any corporal act which would constitute an oath to an affidavit which authorized the issuance of a warrant for the search of appellant's premises, and, consequently, that such warrant was void.

The judgment of the court below will therefore be reversed, and the cause remanded.

Reversed and remanded.