Jordan v. State , 147 Miss. 24 ( 1927 )

^* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 1226, n. 6; 17CJ, p. 56, n. 16; Searches and Seizures, 35Cyc, p. 1268, n. 28. The appellant, Harvey Jordan, was convicted in the circuit court of Perry county on a charge of unlawfully having in his possession intoxicating liquor, and from this conviction and the sentence imposed he has prosecuted this appeal.

The evidence upon which the conviction was based was secured by means of search of appellant's automobile, under the authority of a search warrant which was issued on April 19, 1926, returnableinstanter, and which was executed on April 20, 1926.

When the cause was called for trial in the circuit court on September 23, 1926, the appellant filed a motion for a continuance on the ground of the absence of his brother, Reuben Jordan, who was alleged to be a material witness in his behalf. This motion was supported by the affidavit of the appellant averring that, on September 15, 1926, a subpoena for this witness was issued to Forrest county, Miss., which had been returned "not found;" that this absent witness was living and working in that county when the appellant last saw and heard of him on August 27, 1926; that the affiant believed the witness was still residing in that county; and that he could have the witness present at the next term of the court. The affidavit then set forth what this witness would testify if he were present, showing its materiality, and was in other respects in proper form. This motion for a continuance was overruled.

On appeal but two grounds are urged for a reversal, first, that the evidence upon which the conviction was based was inadmissible for the reason that it was secured under a search warrant which had become functus officio on account of the fact that it was issued on April 19, 1926, returnable instanter, and not executed until April 20, 1926; and second, that the court erred in overruling the motion for a continuance.

It is not very clear from this record whether the particular objection that the search warrant was not timely served was specifically called to the attention of the court below, and if it was not it cannot be raised here for the first time, but, conceding that it was raised in the court below, we think that the requirement that the warrant should be returned instanter only required that it should be executed and returned within a reasonable time under the circumstances of the case, and that the execution of a search warrant on the day following the date of its issuance is a sufficient compliance with the mandate that it be executed and returned instanter.

Upon the record now before us the action of the court below in overruling the motion for a continuance presents no reversible error. The motion shows that process for the absent witness had been returned "not found," and no additional process of the court to secure the presence of this witness was requested. Neither the witness nor his affidavit showing what he would have testified to, if present, was produced on a motion for a new trial, and there was no showing that it was impossible to secure the presence of the witness or his affidavit, and it has been repeatedly held that it is necessary to make such a showing to warrant a reversal for the overruling of a motion for a continuance on account of the absence of a witness. Lamar v.State, 63 Miss. 265; Ware v. State, 133 Miss. 837, 98 So. 229; Cox v. State, 138 Miss. 370, 103 So. 129; Osborne v.State (Miss.), 111 So. 834.

The judgment of the court below will therefore be affirmed.

Affirmed.