Cuevas v. City of Gulfport

Ethridge, J., delivered the opinion of the court. The appellant was tried and convicted in the city court of Gulfport for having intoxicating liquors in his possession, and appealed to the circuit court of Harrison county, where he was again tried and convicted, and from the judgment of conviction appeals. The testimony shows that the officers searched the premises of the appellant, having procured papers to be issued by a justice of the peace for such search, and the officers were tendered as witnesses and stated that they made the search by virtue of a warrant. The defendant objected to the introduction in evidence of anything found in the house unless the search warrant was produced, which objection was overruléd and exception taken. It appeared that the warrant under which the search was made was returned to the justice of the peace who issued it, but neither the warrant nor the affidavit upon which it was issued were produced or their absence accounted for, or the loss proven. The officers then testified that they searched and found a bottle of whisky in the house, and then went outside and began to search [646] around the outside and found some empty jugs and some whisky in the jug on the outside of the house. There were about two gallons of whisky produced by the search. The defendant did not testify, but at the conclusion of the state’s evidence moved to exclude all of the evidence and for a discharge, which motion was overruled and exception taken. Since this court has held in numerous cases, beginning with Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377, that evidence secured against the defendant without having procured a search warrant is inadmissible, it follows logically that to make such evidence obtained by a search admissible the state must produce a proper affidavit and, search warrant issued thereon, showing a legal search, before the things found by reason of the search can be offered in evidence, unless the defendant expressly waived the search warrant at the time of the making of the search, and there is no suggestion of any waiver in the present case. There was no proof of loss or destruction of the affidavit and warrant, nor of their contents, and therefore the evidence introduced in this case was incompetent, and there was no competent evidence offered upon which the conviction may be sustained. The Tucker Case, supra, was reaffirmed in Owens v. State (Miss.), 98 So. 233, and these cases have been followed in numerous other cases. In Falkner v. State, (Miss.), 98 So. 691, we held that the provisions of the Constitution of 1890, section 23, extend to all of the property and possessions of the citizen, axxd that no part of his property can be invaded and searched without a search warrant procured in the legal manner. For the error indicated,. the judgment must be reversed, and the cause remanded. Reversed and remanded.