Loeb v. State

98 So. 449, 133 Miss. 883, 1923 Miss. LEXIS 196

• Court: Mississippi Supreme Court
• Decided: December 31, 1923
• Docket: No. 23468
• Status: Published

Opinion

Ethridge, J.,

delivered tbe opinion of ,tbe court.

On tbe 20th day of January, 1923, J. H. Elkins, a policeman of tbe city’of Meridan, made affidavit before a justice of tbe peace of tbe county as follows:

“State of Mississippi, Lauderdale County.

“Before me, R. Olay, tbe undersigned justice of tbe peace in and for district One of Landerdale county, Mississippi,- J. H. Elkins, makes oath that be believes and has good reason to believe that vinous, spirituous ,malt, alcoholic, and intoxicating liquors are being kept and offered for sale and barter are sold and bartered in a building occupied by Susie Lowe or Loeb at a residence on Thirty-Third avenue, bouse No. 1009, in tbe city of Meridan, Mississippi. Wherefore be prays a warrant directing search for and seizure of said liquors, vessels and appliances. • J; II. ElkiNs

“Sworn to and subscribed before me this tbe 20th day of January, 1923.

“R. Clay, Justice of tbe Peace.”

Thereupon tbe justice of tbe peace issued a search warrant commanding tbe search of tbe building described in tbe affidavit, and directed tbe seizure of any intoxicating liquors, vessels, and appliances that may be found therein and used either -for tbe purpose of selling, giving away, or being offered for sale in said building, and to bold .the same for disposition according to tbe law, and directed tbe return of tbe writ with tbe action of the officer indorsed 'thereon to the said justice of tbe peace on the 12th day of February, 1923. Tbe city marshal executed tbe said writ, and found in said building about one gallon and a half of whisky, which was seized, and an affidavit was made against the appellant charging her with unlawfully having in her possession one gallon and a half of whisky and intoxicating liquors.. In the justice of the peace court the appellant filed a plea of nolle contendere, and was fined and sentenced to jail and prosecuted an appeal to the circuit court. In the circuit court the appellant filed a motion to suppress the testimony obtained by the search and discharge the defendant from custody for the reasons, as alleged: That the only evidence the state has or can produce was that gained or secured by the use of a supposed search warrant alleged to be void; no probable cause being shown to the issuing officer of the warrant on affidavit, which is the only authority upon which a lawful warrant can be issued under sections 23 and 26 of the state Constitution. Second, because the alleged affidavit does not state “facts,” and therefore is insufficient to constitute probable cause. Third, because section 2088, Hemingway’s Code (Laws 1908, p. 117), is unconstitutional in that it violates sections 23 and 26 of the state Constitution and articles 4 and 5 of the United States Constitution. Fourth, because the statute requires the justice of the peace to issue the warrant on the affidavit of any credible person who makes oath that he has reason to believe and does believe that intoxicating liquors are unlawfully kept, etc., which section makes it mandatory on the justice of the peace to issue the warrant, whether he believes such person’s evidence or not. Fifth, because the search warrant issued without facts sworn to before a justice of the peace is issued without probable cause and is void. Sixth, because the description of the defendant’s property as described-in said search warrant is insufficient. Seventh, because the evidence before the justice of the peace by Elkins was hearsay and on information and belief, which is insufficient in law for the issuance of a search warrant. Eighth, because the affidavit for the warrant fails to state the kind and quantity of intoxicating liquor to be searched for and the owner thereof.

The motion to suppress the affidavit was overruled, and appellant placed on trial and convicted, and from such conviction appealed here.

Section 23 of the state Constitution reads as follows:

“The people shall he secure ip their persons, houses, and possessions, from unreasonable seizure or search; and.no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and. the person or thing to be seized. ” ■

Section 2088, Hemingway’s Code (Laws of 1908, chapter 115), reads as follows: “Upon the,affidavit of any credible person that he has reason to believe and does believe that any intoxicating liquors, as described in this act, are being kept or offered for sale or barter, or sold or bartered, or that they are being kept to be given away, or are being given away to. induce trade in any room or building designated in the affidavit, it shall be the duty of any justice of the peace of the county in which the place is situated to issue a search warrant, directed to the sheriff or any constable of the county, or if in a municipality, to the sheriff, or any constable or marshal, or policeman therein, commanding him to enter the room or building designated, by breaking, if necessary, and search for and seize such liquors, and all vessels or appliances used in connection therewith, and hold the same until disposed of according to law. The writ shall be returnable at a time to be stated therein, not earlier than five days, and a copy of the writ shall be served on the owner or claimant person in possession of such liquors.”

It is contended by the appellant, and has been contended by other appellants in this.court, that this statute is unconstitutional because it authorizes and directs the justice of the peace to issue the warrant “upon the affidavit of any credible person tbat lie has reason to believe and does believe that any intoxicating liquors . . . are . . . kept or offered for sale,” etc.; that the language of the statute takes away all discretion of the justice of the peace as to whether thereis probable cause and that, under section 23 of the Constitution, that the existence of probable cause is a judicial question for the determination of the judicial officer, and not for the determination of the affiant. It is contended that the Constitution requires positive, direct evidence of the facts alleged to be produced before the justice of the peace, and for the justice of the peace to determine judicially the truth of the facts set forth, before the warrant can issue.

It is true that the question of probable cause is a judicial question, but in many cases judicial action may be reasonably controlled by statute, and it is not essential to probable cause that the alleged facts shall be absolutely true. Mr. Black in his Dictionary says:

“ ‘Probable cause’ may be defined to be an apparent state of facts found to exist upon reasonable inquiry (that is, such inquiry as the given case renders convenient and proper), which would induce a reasonably intelligen.t and prudent man to believe, in a criminal case, that the accused person had committed the crime charged, or, in a civil case, that a cause of action existed.”

The various definitions of “probable cause” are found in Words and Phrases, First Series, vol. 6, pp. 5618 to 5627, inclusive, among which are the following definitions of that term:

“Vinol v. Core, 18 W. Va. 2, defines probable cause to be a state of facts actually existing, known to the prosecutor personally or by information derived from others, which in the judgment of the court would lead a reasonable man of ordinary caution, acting conscientiously upon these facts, to believe the party guilty.”

“Probable cause means a state of facts wbicb would lead a man of ordinary prudence and discretion to entertain an bonest belief in tbe guilt of tbe accused.”

“Probable cause is sucb a state of facts in tbe mind of the prosecutor as would lead a man of ordinary caution and prudence to believe and entertain an bonest and strong suspicion that tbe person arrested is guilty.”

“Tbe probable cause wbicb will justify a prosecution and be a defense to an action for malicious prosecution, or for arrest and imprisonment, is sucb a state of facts and circumstances as will lead a man of ordinary caution, prudence, and good conscience, impartially, reasonably, and without prejudice, upon tbe facts within bis knowledge, to believe that tbe accused is guilty.”

“ ‘Probable cause’ does not depend upon mere belief, however sincerely entertained, because, if that were so,, any citizen would be liable to arrest and imprisonment without redress, whenever any person, prompted by malice, saw fit to swear that be believed tbe accused was guilty of tbe crime charged. Tbe law, therefore, has imposed an additional ground, viz., sucb knowledge of facts as would induce a reasonable man to believe that tbe accused was gujlty.”

Numerous other definitions are contained in the Second Series of Words and Phrases, vol. 3, pp. 1224 and 1225.

The státute (section 2088, Hemingway’s Code) provides a warrant to be issued upon the affidavit of any credible person who has reason to believe and. does believe, and will make affidavit to that effect, that sucb liquor is kept, etc. Tbe words “credible witness” and “credible person” are variously defined. Webster defines ‘ ‘ credible ’ ’ as follows: “ Wortby of belief; entitled to confidence; trustworthy.” Black, in bis Dictionary, defines “credible witness”: “One who, being competent to give evidence, is worthy of belief.” Bouvier gives substantially tbe same definition as Black. In 2 Words and Phrases, First Series, p. 1710, the term, “ credible witness” is defined as follows:

“The term ‘credible’ as applied to a witness, means deserving of confidence; but, as applied to a story, it may signify worthy of belief, or probable only, or barely not incredible. ’ ’

“A credible witness is one who, being competent to give evidence, is worthy of belief.”

“The term ‘credible witness,’ as used in Code Cr. Proc. art. 746', providing that no person shall be convicted of perjury, except on the testimony of two credible witnesses, or one credible witness corroborated strongly by other evidence, means one whose character for truth is above reproach. Bouvier, in his Law Dictionary, defines a credible witness ‘to be one who, being competent to give evidence, is worthy of belief.’ ”

In Words and Phrases, Second Series, vol. 1, 6. 1126, credible witness is defined as follows:

“A ‘credible witness’ is one who is not disqualified to testify by mental incapacity, crime, or other cause.”

“When the ‘credibility’ of a witness is spoken of, it refers only to his integrity and to the fact that he is worthy of belief. The term does not imply that he has intelligence, or knowledge, or opportunity for knowledge of the particular facts in the case. ’ ’

“The word ‘credible’ means worthy of credit. When applied to the person of a witness, it bespeaks him to be a person of capacity to deserve credit.”

In the same work “credible person” is defined: “The statute requiring that an affidavit upon which an information is based be made by a ‘credible person’ contemplates a person competent to give evidence and worthy of belief, and the mere fact that a person’s reputation for truth •and veracity is attacked does not render him incompetent to make the affidavit.”

The word “ credible ” has also been used as synonymous with “competent,” and this meaning has generally been attributed to the word as applied to a subscribing witness to a will, and our own court, in Swanzy v. Kolb, 46 So. 549, defines the word to mean a competent witness, hut inasmuch as the testator generally selects witnesses to his will, he may he presumed to select persons deemed credible by him.

We think the statute should be given a construction that would enable the justice of the peace to pass judicially upon the credibility of the person making' the affidavit. This view will harmonize with the constitutional purpose of securing the peace and enjoyment of persons, homes, and property from unreasonable seizure or search, and to so construe the statute it will be clearly constitutional. Our own court has dealt with the question of probable cause as affected by affidavit on information and belief in the case of the State v. Quintini, 76 Miss. 498, 25 So. 365. The court, speaking through Judge Terrall, said:

“The brief of the attorney-general says that he is informed by the district attorney that the affidavit was quashed because it was not made on the personal knowledge of the affiant. The common law was ever jealous of the personal rights of the subject, and its principles in this respect are embodied in section 23 of the Constitution, which secures all persons from arrest unless on -probable cause supported by oath or affirmation. In reference to prosecutions before justices of the peace, section 27 of the Constitution provides that the proceedings in such cases shall be regulated by law, and section 2421, Code 1892, reads that ‘on affidavit of the commission of a crime of which he has jurisdiction lodged with a justice of the peace he shall try and dispose of the case according to law. ’ By the general principles of the common law every accusation of a crime against an accused person must be charged, directly and positively stating the nature and cause of the accusation, and our bill of rights does not impair these common-law principles. But neither the Constitution nor section 2421, Code 1892, requires the affidavit to be sworn to by one having personal knowledge of the facts stated in it, nor do we see any reason for supplying such omission on the part of the legislature. The improbabilities of finding a person who knows all the facts of any crime, and who, if knowing them, would be willing to charge them in such language as imports undoubted guilt, possibly induced the legislature not to require personal knowledge in the affiant; and that the legislature did not intend the affidavit to be made on personal knowledge is evidenced by the repeated attempts of that body to have misdemeanors prosecuted before justices of the peace instead of before the circuit courts, a r, by the act'which authorized grand juries to refer misdemeanors presented to them to the proper justice of the peace of the county for trial. A person may be arrested only on probable cause, but probable cause in law is a charge of crime made on oath, without regard to the fact whether the oath is made on personal knowledge or upon information and belief merely. By common law certain officers made-information without Qath, and such unsworn information was probable cause by that law. Here Carver was a constable, a sworn officer of the law, and his affidavit, made upon information and belief, charging Quintini with a crime, was probable cause, and constituted a valid charge against Quintini for his arrest and trial. State v. Davie, 62 Wis. 305 [22 N. W. 411]; Clark’s Crim. Proc., section 6; Bish. Crim. Proc., section 230; Bigham v. State, 59 Miss. 529; Coulter v. State, 75 Clark’s Miss. 356 [22 So. 872].”

See, alsOj cases cited in 3 A. L. R. pp. 1517, 1518, under heading “Sufficiency of Showing of Probable Cause.”

The Quintini Case, in our opinion, is controlling on the point raised that section 2088, Hemingway’s Code, is unconstitutional. We do not think it is. The rule is that statutes are not to be held unconstitutional unless clearly so beyond reasonable doubt.

We think the warrant sufficiently described the premises to be searched. In our state it does not require the technical description of a conveyance, hut any description that will clearly give-the officer information as to the location of the premises will be sufficient. In this case the number of the house and the street on which it is situated is an ample description. "We do not think it is necessary to describe the intoxicating liquors any more definitely than to describe them as intoxicating liquors. Officers and persons seeking to enforce the laws against the use, possession, and sale of intoxicating liquors can rarely know with precision the kind of liquors kept. The object of the statute is to seize the intoxicating liquors alleged to he unlawfully possessed, kept, or stored for.sale, giving the person in whose possession they are found the right to contest the issues involved after the seizure.

The other points presented are without merit, and the judgment will he affirmed.

Affirmed.