Bradley v. State , 134 Miss. 20 ( 1923 )

Cook, J.,

delivered the opinion of the court.

The appellant was convicted in the circuit court of Forrest county of manufacturing intoxicating liquor, and sentenced to the penitentiary for a period of eight months, and from this conviction and sentence this appeal was prosecuted.

The sheriff of the county and his deputies secured a search warrant for the purpose of searching the home of appellant for intoxicating liquor; the description of the premises to be searched being as follows:

“A certain room or building and all outhouses occupied by James or Zeke Bradley, situated in Forrest' county, Miss.”

The officers proceeded to. the residence of the appellant, and, not finding him at home, they served a copy of the warrant on appellant’s wife, and proceeded to make a search of the premises. A small boy about twelve, years of age, the son of appellant, was seen to come out of a smokehouse in the yard with a tin bucket in which there was some homemade whisky. On searching this smokehouse they found a still in operation, with whisky running therefrom and pouring on the ground. They took into their possession the still and about three quarts of whisky. The officers reached the home of appellant about eleven o’clock, and in an hour or two thereafter the appellant returned to his home in his wagon, and, upon being confronted with the evidence of the crime, denied all knowledge thereof, denied that he had anything to do with bringing the still there, setting it up, or in its operation. He claimed that he left home at five o’clock that morning for the purpose of hauling a load of wood to the city of Hattiesburg, seven or eight miles away, and stated that a negro must have brought the still to his place. He so testified on the witness stand, and stated that the negro who brought the still to his place was named Joe Stinslo.

Oil cross-examination of the defendant at the trial he was asked if he had not sold whisky to one Henry Gray a few days before the discovery of this still at his place. This he vigorously denied, and then it was developed in the testimony that an affidavit had been made against him in the justice court charging him with a sale of intoxicating liquor to Gray, and that he had been tried on this charge and acquitted by a jury. Thereupon Henry Gray was introduced as a witness for the state in rebuttal, and he was permitted to testify, over the objection of the defendant, that he had bought whisky from the appellant shortly before the still was discovered, notwithstanding the fact that he (Gray) admitted that the appellant had been tried in the justice court on the charge of selling the whisky about which he was testifying, and had been acquitted of the charge.

The appellant assigns as error the omission of the word “feloniously ” from the only instruction granted the state. By statute it is a felony to malte or manufacture intoxicating liquor in this state, and under no circumstances can it be a misdemeanor. The only fact to be determined by the jury was whether the appellant participated in the manufacture of the whisky, and, that fact being determined, the statute fixes the grade of the offense, and consequently there was no error in omitting this word in the instruction.

It is next argued that the affidavit and search warrant were illegal — first, because they and each of them failed to sufficiently designate and point out the place to be searched; second, because the search warrant was returnable at an earlier day than five days after its issuance; third, that section 1749, Code of 1906 (section 2088, Hemingway’s Code), is violative of section 23 of the Constitution, for the reáson that it does not require a hearing before the justice of the peace to determine whether probable cause existed for the issuance of the warrant, and does not require that facts be set forth in the affidavit showing upon what the affiant based his information and belief that intoxicating liquors were being unlawfully kept, so that the justice of the peace' might determine therefrom whether probable cause existed for the issuance of the writ.

We think the affidavit and the warrant sufficiently described the premises to be searched. There is some difference among the authorities as to what is a sufficient description of the premises to be searched, and some of the courts have held that the description must be as specific as a description in a conveyance of real estate. Others have held that any description that will enable the officer to locate the premises definitely and with certainty is sufficient, and we think this view is the better one. A description may be one used in the locality and known to the people, if it is sufficiently suggestive that an officer by reasonable inquiry may locate with certainty the place to be searched. All other objections of the appellant to the validity of the search warrant have been this day decided contrary to his contention, in the cases of Bufkin v. State (No. 23679), 98 So. 452, and Loeb v. State, (No. 23468), 98 So. 449.

The next assignment of error is based upon the action of the court in admitting the testimony of the witness Gray that he had bought whisky from appellant a few days before the discovery of the still. As said in King v. State, 66 Miss. 502, 6 So. 188, the general rule is that the issue on a criminal trial shall be single, and the testimony must be confined to the issue, and on a trial of a person for one offense the prosecution cannot aid the proof against him by evidence that he committed other offenses. To this rule there are certain well-recognized exceptions, but tbip evidence of an offense of which the defendant had been acquitted does not come within any of these exceptions. Under section 1762, Code of 1906, (section 2098, Hemingway’s Code), it is competent, on a trial for selling liquor, to introduce evidence of more than one offense, but this statute does not warrant the introduction of evidence of other and distinct violations of law on the trial of one charged with manufacturing liquor, and in no case would it authorize the introduction of evidence of offenses of which, the defendant had been previously acquitted. In presenting his defense to a.specific charge a defendant should not be required to carry the burden of a retrial on a charge of which he has already been declared innocent, and we think it was reversible error to admit this evidence of a sale of liquor — a charge of which the defendant had already been declared innocent by a jury. The judgment of the court below will therefore be reversed, and the cause remanded.

Reversed and remanded.