Pickle v. State , 137 Miss. 112 ( 1924 )

Ethridge, J.,

delivered the opinion of the court.

Curtis Pickle was convicted in the circuit court of Leake county for having intoxicating liquors in his possession in district 2 of said county.. The prosecution came about by the issuance of a search warrant founded upon an affidavit in which affidavit it was alleged that the affiant “has reason to believe and does believe that vinous, malt, alcoholic, intoxicating and spirituous liquors are being kept and offered for sale and barter, and are sold and bartered (or are being kept to give away and are being given away to induce trade) in violation of law in a residence occupied by Curtis Pickle, in the county of Leake, state of Mississippi, and this suspicion is not feigned of malice to said Curtis Pickle, but is founded on credible information, which he believes to be true,” and prays for the issuance of a search warrant. The warrant describes the premises to be searched as “in a building occupied by Curtis Pickle, or in a certain vehicle, to wit, on premises or on the person of Curtis Piclde in the county of Leake, state of Mississippi,” and commands the officer to make the search and enter the rooms, outbuildings, or premises by breaking if necessary, etc. Search was made and no liquors were found in the house or room occupied by Curtis Pickle. A store building was. searched as well as the residence, and no liquor being' found in them, the officer proceeded to search other parts of the place owned by Curtis Pickle, going outside of the yard and into a barn and lot and into the woods near the barn. While searching in the barn the feed trough was removed and a jug was found buried under the trough containing about a quart of “moonshine” whiskey.

On the trial in the circuit court the state failed to prove that the liquor was found in Mississippi and failure to prove venue is assigned for error. The attorney-general confesses that under former decisions of this court the proving of venue is essential to a conviction, but he urges that the affidavit and search warrant were introduced in evidence and that they described the premises of 'Curtis Pickle as being in Leake county, Miss., and in district 2 of that county. He concedes that the variance between the affidavit and the search warrant was fatal to their validity, but contends that Pickle admitted that the liquor was found by the officer in the barn on his premises, and that under previous decisions the validity of the search warrant and affidavit become immaterial.

In our view of the case the introduction of the search warrant and the affidavit upon which it was founded have no tendency to prove venue. The only evidential value they would have would be to justify a search and make legal evidence obtained by means of a search. At most, it is a mere charge and has no efficacy in establishing the venue of the case, and by reason of the failure of the state to prove venue the judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded.