Mississippi Supreme Court, 1940

McGowan v. State

Mississippi Supreme Court · Decided May 13, 1940 · Anderson

196 So. 222; 189 Miss. 450; 1940 Miss. LEXIS 103 (Southern Reporter)

Counsel

Martin Farr, of Prentiss, for appellant. We submit that when the justice of the peace hears the evidence and determines the issue of probable cause vel non, he is acting judicially and he is acting in the same capacity as a judge inquiring into the matter, hearing testimony and finding a matter of law and fact. He cannot do this outside his judicial district. We most respectfully submit that the affidavit for the search warrant and the search warrant were both null and void and that no evidence could be admitted under them. Our court has repeatedly held that the determination of whether or not probable cause exists, when an affidavit is presented for a search warrant, is a judicial question; that it is a judicial finding of fact and cannot be further inquired into as between the state and the defendant. The officer who is called upon to issue the warrant must first hear the evidence and must determine whether or not the person offering the affidavit is a credible person and must determine whether or not the evidence shows probable cause. Sykes v. State, 157 Miss. 600 , 128 So. 753 ; Mai v. State, 152 Miss. 225 , 119 So. 177 ; Hendricks v. State, 144 Miss. 87 , 109 So. 263 ; Loeb v. State, 133 Miss. 883 , 98 So. 449; Cornelius, Search Seizure, sec. 83; Durfee v. Grinnell, 69 Ill. 371 , 375; Wyoming v. Peterson, 194 P. 347, 13 A.L.R. 1284; State v. Lovell, 70 Miss. 309 , 12 So. 341; Riley v. James, 73 Miss. 1 ; State v. Tate, 77 Miss. 469 ; Griffith's Chancery Practice, sec. 85. W.D. Conn, Jr., Assistant Attorney-General, for appellee. It was contended in the court below and in this court that the Justice of the Peace had no authority to entertain this affidavit and to issue the search warrant unless he were physically present in the district from which he had been elected and in which he had jurisdiction to try criminal cases. We think that the issuance of a search warrant is no exercise of the criminal jurisdiction of the Justice of the Peace. It was no prosecution as this court has held in some several cases. Section 2072 of the Mississippi Code of 1930 provides that: "The jurisdiction of every Justice of the Peace shall be co-extensive with his county, and he may issue process in matters within his jurisdiction, to be executed in any part of his county." Section 1975, Mississippi Code of 1930, provides that when an affidavit for search warrant has been presented, "it shall be the duty of any Justice of the Peace of the county" to issue a search warrant thereon, etc. Since, as we see it, the Justice of the Peace in this case was exercising no part of his criminal jurisdiction, it would be permissible for him to issue this class of process, even though he were not physically present in his own district. Argued orally by Paul H. Farr and G.L. Martin, for appellant, and by W.D. Conn, Jr., for State.

Opinion of the Court

Anderson, J.,

delivered the opinion of the court.

Appellant was indicted and convicted in the Circuit Court of Jefferson Davis County of the crime of the unlawful possession of intoxicating liquor, and fined $500’ and sentenced to the county jail for ninety days. Prom that judgment, he prosecutes this appeal.

The principal evidence of appellant’s guilt was obtained by a search warrant. It is contended that the search warrant was void; therefore, the evidence obtained by it should not have been admitted. Lane, a justice of the peace of district No. 5 of the county, issued the warrant. At the time he issued it, he was in the justice of the peace district No. 1 of the county. It was issued to be served and was served in district No. 5. The ground upon which it is contended that the search warrant was void is that its issuance was judicial action which Lane could not perform outside of district No. 5.

The rule is that a judicial officer has not the power to try and determine causes while physically out of his judicial district. The question therefore is whether the justice of the peace issuing the warrant in this case was acting judicially in the meaning of that principle. We think not. It is true that this Court has held that the officer issuing a search warrant acts quasi judicially. However, in doing so, he is not trying any cause. Adversary parties are not before him. He can render no final *453 judgment. He merely passes on whether or not the statute is complied with. In the case of Goffredo v. State, 145 Miss. 66, 111 So. 131, although not directly in point on its facts, the principle laid down is in point. Coahoma County is divided into two chancery and circuit court districts. A justice of the peace in the Clarksdale district issued a search warrant returnable before a justice of the peace in the other district. It is contended that the search warrant was void for that reason. The act creating two judicial districts in the county provided, among other things, that all crimes committed thereafter should be cognizable only in the proper court of the district in which the offense was committed. The Court held that the statute had reference to jurisdiction of offenses upon their merits; that the mere taking of an affidavit for and issuing a search warrant was not the exercise of jurisdiction.

Section 2072 of the Code of 1930 provides that “The jurisdiction of every justice of the peace shall be coextensive with his county, and he may issue any process in matters within his jurisdiction, to be executed in any part of his county; . . .” And Section 1975 of the chapter on Intoxicating Liquors provides for the issuance of search warrants by any “justice of the peace of the county or county judge, or the judge of the circuit court of the district or the chancellor of the district in which the place is situated.” We are of the opinion that under these statutes the action of the justice of the peace in issuing the search warrant was authorized.

The other grounds assigned and argued are not of sufficient merit to call for discussion.

Affirmed.

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