Nelson v. State

Ethridge, J.,

delivered the opinion of. the court.

The appellant was indicted, tried, and convicted of the unlawful manufacture of intoxicating liquors. This prosecution grew out of a search warrant and the search made under "it. The search warrant was issued by a justice of the peace of Smith county and was served by the federal prohibition enforcement officers; but the search warrant and affidavit were not introduced in evidence, and their contents are not before the court.

One of these prohibition officers was asked.:

“Q. What did you do there? A. We searched his premises there; it had been reported there was a still there.

“Q. Did you have any authority to search it! A. Yes, sir; we had a search warrant.

“Q. State what was said by you to him when you went to search Ms premises. A. We drove up in front of his house.

“Q. ‘We,’ who do you mean! A. Mr. Buchanan and myself. He was fixing a tongue in a moving machine. We introduced ourselves and give him a. copy of the search warrant, and he said, ‘All right,’ to go ahead and search.

“Q. State whether or not you did search. A. We did.

“Q. What did you find! A. A complete copper still, boiler, worm, that was all in the cooler barrel or tub, and a half gallon of whiskey..

“Q. Where was the whiskey! A. In the smokehouse directly behind the house.”

He further testified that he obtained a warrant from the justice of the peace; that he had three copies of the search warrant; that he delivered one to tbe defendant, returned one to the justice of the peace, and sent the other to Jackson for our files. All this testimony was objected to and the objection overruled.

The justice of the peace who issued the search warrant was not produced, nor was any copy of the warrant or affidavit introduced in evidence.

The state'undertook to prove by the clerk of the circuit court that the warrant was not in his office, and he testified it was not in his office; that he had never seen it. There was no proof whatever that it had ever been sent up by the justice of the peace, nor were the contents of the affidavit and warrant proven.

There was a motion for a peremptory instruction which was overruled.

The defendant testified on his own behalf and said that the officers drove up and stopped and came up to where he was and introduced themselves as -McClelland and Buchanan, and asked if Tom Nelson lived there, and appellant replied:

‘‘ That is what they call me. Q. Then what happened? A. Well, he says, ‘I have a search warrant for you,’ and pulled out a paper out of his pocket and handed it to me, and I could not see to read it, and I just looked at it, and handed it back to him. I says, ‘If you got a legal search warrant for my place, and you are going to search my place, I can’t prohibit it, I reckon.’ Q. Did they search your place? A. They did. Q. What became of you? A. They carried me right along with them. Q. Where did they carry you? A. Right through my house to my smokehouse.”

And he testified further that they found a still in his smokehouse, and he did not know how it came there; that he had not been in it for some time; and that the still looked new and bright and did not appear to have been run. He denied that they found whiskey.

The state reintroduced Mr. Buchanan, who testified to a statement made by the appellant on his way to court, in which he stated that they knew they had him about making the whiskey and asked them how light they would be on him. Appellant denied this statement.

The appellant -was convicted and sentenced to the penitentiary, and prosecutes this appeal.

A number of questions were raised on appeal, one of which is that a search warrant was issued by the justice of the peace of Smith county where the search was made to federal prohibition officers who were not residents and citizens of. the county, and who were incapable of exercising the rights of search under such search warrants, and also that the warrant from the state could not be issued and served by federal prohibition officers.

Section 2088, Hemingway’s Code, chapter 1.15, Laws of 1908, provides for the issuance of search warrants and provides that it shall be directed to the sheriff or any constable of the county if in a country district, or, if in a municipality, to the sheriff, or any constable or marshal, or policeman therein.

Section 2231, Hemingway’s Code, section 2732, Code of 1906, provides that in cases of emergency, and where a constable or sheriff or deputy sheriff cannot be had in time, the justice of the peace may appoint some reputable person to execute any process.

Section 266 of the state Constitution provides;

"No person holding or exercising the rights of powers of any office of honor or profit, either in his own right or as a deputy, or while otherwise acting for or in the name or by the authority of another, under any foreign government, or under the government of the United States, shall hold or exercise in any way the rights and powers of any office of honor or profit under the laws or authority of this state, except notaries, commissioners of deeds, and United States commissioners.”

Section 2811, Hemingway’s Code, section 3473, Code of 1906, provides:

"The official acts of any person in possession of a public office, and exercising the functions thereof, shall be valid and binding as official acts, in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold the office or not, and whether such person be lawfully qualified or not,” etc.

We cannot decide in the absence of the affidavit and search warrant whether the justice of the peace undertook to issue the writ under the emergency section above quoted, and we do not think we should pass upon the interesting questions raised with reference to the powers conferred on the prohibition officers by the search warrant in the absence of all facts bearing thereon.

We do not find it necessary now to pass upon the question as to whether the federal prohibition officers who are by law the assistants of the Commissioner of the Internal Revenue, and whose acts are his acts under the decision of the federal supreme court, may be deputized by state officers to serve search warrants. And we will reserve that question until it is properly presented.

The case must be reversed on other grounds; that is to say, for the failure to introduce the affidavit and warrant by which access to the premises of the appellant was secured.

In Cuevas v. City of Gulfport, 99 So. 503, we held that in a prosecution for violating* the laws against possession of intoxicating liquors, evidence obtained by a search warrant cannot be admitted over the objection of the defendant until the affidavit for a search warrant and the search warrant are produced in court, or their loss or destruction shown.

It has been said that the evidence obtained by the search was legal because the prohibition agents were federal officers, and that the prohibition of section 23 of the state Constitution on searches and seizures was only applicable to officers acting under the authority of the state government and had no application to the federal government.

We think under the facts in this case the prohibition officers were acting under color of state authority. They procured a search warrant to be issued and delivered to them by a competent state officer, and this warrant commanded the search to be made, and it cannot be said that it was not made under the authority of the state government. The warrant, if legally issued, made it proper for the defendant to yield to its command, regardless of whether the person undertaking; to serve it was a competent person to be appointed for that purpose. Th citizen is not required to resist a person acting under a warrant issued by the state, but he may yield to the warrant and test its legality in a subsequent proceeding. Banfill v. Byrd, 122 Miss. 288, 84 So. 227.

Reversed and remanded.

Sykes, J., dissents.