Powell v. State

111 So. 738, 146 Miss. 677, 1927 Miss. LEXIS 211

• Court: Mississippi Supreme Court
• Decided: March 21, 1927
• Docket: No. 26219.
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

The appellant was convicted on a charge of having in his possession a distillery, and sentenced to serve a term of eighteen months in the state penitentiary, and from this conviction and sentence this appeal was prosecuted.

The testimony upon which the conviction was based was secured by means of a search of appellant’s home and premises under a search warrant in which there was no date or time fixed for the execution and return thereof, and on appeal the appellant contends that this warrant was insufficient to authorize the search, and consequently that the evidence secured by the search was inadmissible.

In the cases of Bufkin v. State, 134 Miss. 1, 98 So. 452, and Taylor v. State, 137 Miss. 217, 102 So. 267, which were decided under section 2088, Hemingway’s Code, which provides that a search warrant shall be returnable at a time to be fixed therein, not earlier than five days, we held that no right of a defendant was infringed by reason of the fact that the return day fixed in the warrant was earlier than five days from its issuance, but in the Taylor case it was said that — ‘ ‘ There are important considerations that demand that some date, within a reasonable time after the issuance of the warrant, be fixed for its return, and that it should be executed within the time within which it is, by its terms, a live process.”

Section 2088, Hemingway’s Code, which provides for the issuance of warrants for the search of intoxicating liquors, was amended in several respects by section 1, chapter 244, Laws of 1924, the' provision for the return of search warrants being amended so as to provide that “the writ shall be returnable instanter or on a day stated and a copy shall be served on the owner or person in possession if such person be present or readily found,” and under this section as amended, what was said in the Taylor case in reference to the necessity for a return day to be fixed in the warrant applies with equal force. The.provision that the warrant “shall be returnable instanter or on a day stated” is mandatory, and such a warrant must conform strictly to the requirements of the Constitution and statute under which it is issued. For the state it is contended that where the return day is left blank in the warrant it should be held to be returnable instanter, but we do not think the law supplies this omission or that the court may construe such a warrant to be returnable instanter. If there is no return day named in the warrant, there is no reason why the officer may not retain it for an indefinite time awaiting a convenient occasion to execute it, and we do not think any such result was contemplated by the legislature or that a failure to obey the mandate of the statute should be construed to bring about so undesirable a result. Consequently, we hold that a search conducted under the authority of a search warrant in which no return day is named is il legal, and that the evidence procured by means of such search is inadmissible. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A. L. R. 1377; Owens v. State, 133 Miss. 753, 98 So. 235.

The judgment of the court below will therefore be reversed, and the cause remanded.

Reversed and remanded.