Carr v. State

Counsel

R.W. Boydstun, of Louisville, for appellants. The first instruction given for the state in trial court does not state the law applicable to this case. The information upon which the sheriff acted in this instance did not come from "A creditable person", as referred to in former opinions of this court. The sheriff had the information from Mr. Griff Thompson. Mr. Griff Thompson was a deputy sheriff and one of the arresting officers. This entire record shows that Mr. Griff Thompson had often been deputized by the sheriff and was in fact a regular hanger-on about the sheriff's office. After he got out and obtained information he was then deputized by the sheriff to assist in making raids, arrest, and other things. To allow a man acting in that relation to come into court and testify as an individual is too palpable subversion and evasion of the rights of individuals to be allowed in a court of justice. This places a premium upon "stooges" and allows a violation of the spirit of the law which is intended to be observed by officers. At a time when it is well known to the bench and bar of this state that the illegal sale of whiskey and many kindred violations of law is conducted in many instances with police sanction and protection we think it very necessary that the acts of officials be held within legal bounds. The trial court certainly committed manifest error in receiving verdict of guilty and entering judgment of conviction against Carl Carr under the conditions in this record. The sheriff had information upon which he secured a search warrant for the car, and after being armed with a search warrant made no attempt to serve the search warrant and proceeded to place both of appellants in jail, and after they were in jail carried the search warrant to the jail and served same. This was too late. W.D. Conn, Jr., Assistant Attorney-General, for appellee. In view of the fact that an affidavit for search warrant was made and a search warrant was procured and no objection at the trial was made to the introduction of evidence revealed by the search until the affidavit and search warrant were produced forecloses any dispute upon the matter of probable cause. Boyd v. State, 164 Miss. 610 , 145 So. 618 ; Pickle v. State, 151 Miss. 549 , 118 So. 625 ; Cuevas v. City, 134 Miss. 644 , 99 So. 503; King v. State, 147 Miss. 31 , 113 So. 173 . Since the evidence shows that a search warrant was issued on an affidavit therefor and the sheriff attempted to act under the warrant and not on bare probable cause, we think that the issuance of the search warrant by the justice of the peace was an adjudication of probable cause and cannot be collaterally inquired into. Mai v. State, 152 Miss. 225 , 119 So. 177 ; Sykes v. State, 157 Miss. 600 , 128 So. 753 ; Castellucio v. State, 165 Miss. 516 , 146 So. 599 . The evidence shows that at the time of the search the sheriff had a search warrant and so advised appellants, although he did not, at that time, present them with a copy of it. Under the circumstances, the failure of the sheriff to give appellants a copy of the search warrant would not affect the validity of the search. Forshee v. State, 152 Miss. 566 , 120 So. 462 ; Dunn v. State (Miss.), 146 So. 448; Dow v. State (Miss.), 157 So. 342.