Dawsey v. State

110 So. 239, 144 Miss. 452, 1926 Miss. LEXIS 397

• Court: Mississippi Supreme Court
• Decided: November 15, 1926
• Docket: No. 25203.
• Status: Published

Opinion

McGowen, J.,

delivered the opinion of the court.

This is the second appeal, this case having been reversed by this court on the first appeal, 136 Miss. 18, 100' So. 526. After reversal, the defendant was again indicted jointly with his son, O. W. Dawsey, on a charge of having a whisky still in their possession. The son, 0. W. Dawsey, entered a plea of guilty. A. P. Dawsey, the father, was tried on the'charge, resulting in his being-convicted and sentenced by the court to a term of two years in the penitentiary.

The only assignments of error we deem it necessary to notice are:

First: That the indictment, as returned, was null and void, for the reason that it failed to comply with section 1418, Code of 1906 (section 1174, Hemingway’s Code), in- that said indictment fails to show that it was signed by the foreman of the grand jury in his official capacity, said section reading as -follows :■

“All indictments must be presented to the court by the foreman of the grand jury, with his name indorsed thereon, in the presence of at least twelve of such jury, including the foreman, and must be marked ‘filed,’ and such entry to be dated and signed by the clerk; and an entry on the minutes of the court of the finding or presenting of an indictment shall not be necessary or made, but the indorsement by the foreman, together with the marking, dating, and signing* by the clerk shall be the legal evidence of the finding and presenting to the court of the indictment.”

The thing complained of is that R. R. Griffith, foreman of the grand jury, signed his name on the back of the indictment immediately below the defendant’s (name, A. P. Dawsey, and immediately above these words:

“charged with

Possessing a whisky still A true bill

THrwcivo.Cl.l'L o.Vir'l Tttv*xt 5? •C'Jt, ^ r.T t r VT-t exjtxv*. <LT ti-T. J- t

The indictment is further indorsed.

“Filed the 18th day of June, 1924.

“Recorded the 18th day of June, 1924.

“L. N. Cook, Clerk.”

And the record shows that R. R. Griffith was, at that term of court, and on the day of the return of this indictment into open court, foreman of the grand jury, and that he signed his name on the .hack of the indictment, and it is admitted that he was the duly qualified and acting foreman of the grand jury, and that he signed same before it was returned by the grand jury, and that, by oversight, he did not sign “on the dotted line” at the place prepared for the signature of the foreman of the grand jury. His name appears on the back of the indictment about three-fourths of an inch above the words, “Foreman of the Grand Jury.”

Talcing the whole record together, we think that all the necessary requisites relative to the returning and certification of the indictment have been complied with, and we are unwilling, to reverse this case beéause the foreman of the grand jury did not “sign on the dotted line.” No conceivable harm could have been done defendant, and no constitutional or- statutory right has been denied him, and we think that it abundantly appears that the foreman of the grand jury complied with section 1174, Hemingway’s Code (section 1418,■ Code.of 1906), above quoted, and that the clerk complied'with said section, and that the paper is a good and valid indictment of defendant in so far as said section is concerned, and that the signing, as indicated above, was his official act, and appears to be the official act of the foreman of the grand jury from an examination of the original instrument.

Second: It is next assigned for error that the testimony of the sheriff and others who arrested defendant and made the search was inadmissible and incompetent and should have been excluded, for the reason that Fox-worth, a. justice of the peace of district No. 5 of Marion county, before whom the affidavit for a search warrant was made, issued the warrant, which was to be served in district No. 2, for defendant, where he resided, and where the officers found, in his smokehouse within thirty feet of his kitchen, two stills, from one of which the whisky was running, and the other was fired up and ready for business; that there are two legally qualified justices of the peace in district No. 2, and that said warrant was made returnable before Fbxworth in district No. 5. There fire some other objections to the search warrant, but we do not deem them of sufficient importance to notice.

This precise question has been considered by the court in the case of Reynolds v. State, 136 Miss. 329, 101 So. 485, in which case the search warrant was issued by Evans, justice of the peace in district No. 3, which authorized a search in district No. 2, and the writ was made returnable before Evans in district No. 3. The court cited Bufkin v. State, 134 Miss. 1, 98 So. 452, Id., 134 Miss. 116, 98 So. 455, and held as follows:

“Intoxicating Liquors,. — Justice of Peace may issue seardh warrant for execution in my part of county;\ search ivarrauR made returnable to issuing justice in district other than where search was made does not render it void.- — Under section 2088, Hemingway’s Code (chapter 115', Laws 1908), a justice of the peace has jurisdiction to issue a search warrant to be executed in any part of the county. It should be made returnable before a justice of the peace of the district where the search is to be made, but an error in making it returnable to himself in a district other than where the search is made does not render the warrant void. Bufkin v. State, 134 Miss. 1, 98 So. 452.”

“Intoxicating liquors. — Seizure of still under warrmt to search premises for intoxicating liquors, held lawful; testimony of officers, seizing still under warrant for search of premises for liquors, to such fact admissible.— Where officers procured a search warrant to search the premises of a named person for intoxicating liquors, and . obtain entrance into the house on such search warrant, and find in said house.a still or the integral parts thereof, which it is unlawful to possess, under chapter 211, Laws of 1922:, the officers may seize the same and deal therewith as provided by law. The officers being lawfully in the house, are not wrongdoers or trespassers, and they may testify to such facts; it being lawful to seize such contraband articles. ’ ’

As to this point, this case is ruled by Reynolds v. State, supra.

Third: It is' insisted that the testimony of the officers in this case is not sufficient to sustain a conviction of the defendant.

Having held that the evidence offered by the officers in this case was competent, we think the verdict of the jury is supported by ample testimony.

Affirmed.