Conwill v. State , 147 Miss. 118 ( 1927 )

^* Corpus Juris-Cyc. References: Criminal Law, 17CJ, p. 70, n. 42, 43; Intoxicating Liquors, 33CJ, p. 683, n. 23; Searches and Seizures, 35Cyc, p. 1266, n. 15; p. 1268, n. 28, 29. On the question of power of justice of the peace to issue search warrant, see 24 R.C.L. 706; 3 R.C.L. Supp. 1383; 4 R.C.L. Supp. 1552. The appellant was indicted and convicted of distilling, and sentenced to a term in the penitentiary. From this verdict, he prosecutes this appeal.

The evidence was obtained by the sheriff under and by virtue of a search warrant. When the search warrant and affidavit were offered in evidence, they were objected to in the following language:

"Counsel: We object to the papers, the affidavit and search warrant, also to any testimony Mr. Reese might give as a result of any search he made of these premises, for the reason that the affidavit is made before and the search warrant is issued by the justice of the peace of the fourth district when the premises to be searched as set out in that affidavit and warrant are located in the fifth district.

"The Court: Objection overruled."

This was the only objection to the search warrant and affidavit, and the testimony of the officers was predicated on the legality of the search warrant and affidavit.

It is now argued that the warrant was illegal, because there was no return made on it by the sheriff executing it. The fight in the court below was made alone on the ground that the justice of the peace of one district could not issue a warrant to search premises beyond the limits of his district. We have held in a number of cases that a justice of the peace may issue a search warrant to search premises beyond the limits of his district.Falkner v. State, 134 Miss. 101, 98 So. 345; Goffredo v.State, 145 Miss. 66, 111 So. 131; Bufkin v. State,134 Miss. 1, 98 So. 452.

The defendant having made specific objection to the search warrant when offered in evidence, we do not think he is now entitled to raise questions which were not brought up for the decision of the court below. See Boatwright v. State, (Miss.), 109 So. 710. In addition, we may say that, had the objection been made during his trial, the sheriff could then have entered the return upon the warrant, and the evidence would have been admitted. Consequently we think there is no merit in this assignment of error.

It is also assigned that the evidence is insufficient to convict. We think the evidence is clear and strong, showing, if the state's witnesses are to be believed (and we must accept the jury's verdict), that the defendant participated in making the liquor. He, with others, was caught in the act and arrested while the still was being operated, and was participating therein, at least to the extent of renewing the fire under the still; and, in addition, the defendant showed the officers where the mash was hidden. This mash was found where he said it was; and all of the circumstances indicate his joint participation with the other parties who pleaded guilty and who undertook to assume the guilt themselves and exonerate Conwill. The matter was submitted to the jury properly, and its verdict is conclusive.

The judgment will be affirmed.

Affirmed.