Borchers v. State
| Decision Date | 10 April 1936 |
| Docket Number | A-9017. |
| Parties | BORCHERS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Search of defendant's home and seizure of certain articles therein, made by officers without serving a copy of the search warrant as required by statute, section 2635 (St.1931), is in violation of defendant's constitutional right of immunity from unreasonable search and seizure guaranteed by Const. art. 2, § 30.
2. In prosecution for illegal possession of intoxicating liquors where service of search warrant is not made by serving a copy of the warrant in the manner provided by statute, section 2635 (St.1931), any evidence secured thereunder is inadmissible against the defendant.
Appeal from County Court, Canadian County; E. F. Thompson, Judge.
William Borchers was convicted of unlawful possession of intoxicating liquors, and he appeals.
Reversed.
A. L Morrison and Ray K. Bannister, both of El Reno, for plaintiff in error.
Mac Q Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.
This appeal is from a judgment of the county court of Canadian county entered in pursuance of a verdict of a jury finding William Borchers guilty on a charge of unlawful possession of approximately eighteen pints of whisky and fixing his punishment at confinement in the county jail for thirty days and a fine of $50.
The only assignment of error presented in the brief is that the conviction was had on evidence obtained by an illegal search of the home of the defendant.
When the case was called for trial and before the jury was impaneled, the defendant filed a motion to suppress the evidence on the ground that the search of his home and seizure was illegal, in that no search warrant was ever served.
In support of his motion the defendant testified substantially as follows: That he lives two miles southeast of El Reno with his wife and four children. On the afternoon of the 26th of April, 1935, returning from town with his wife, he found officers Farris, Whelan, Witlock, and Pool coming out of his home; that none of his family were at home at the time; that no search warrant was served upon him or upon any member of his family, nor any person on the premises; that no search warrant was posted on the door, and no search warrant was left on the premises; that he did not see any warrant on that occasion; that the officers searched his car after his arrival, but did not claim to have a search warrant.
There was no testimony offered on the part of the state.
The court overruled the motion to suppress.
Section 2635 of the Enforcement Act (St. 1931) provides in part as follows: ...
To continue reading
Request your trial
-
DARITY v. State, F-2007-1192.
...person present within and in charge of the premises to be searched at the time the search warrant is executed. Borchers v. State, 1936 OK CR 49, 59 Okl.Cr. 116, 56 P.2d 922 (officers searching unoccupied residence violated statutory service requirement by failing to post copy of the warrant......
-
O'Neal v. State
...defendant, and that Section 7009, C.O.S.1921, now section 2635, St.1931, 37 Okl.St.Ann.§ 84, was not complied with. In Borchers v. State, 59 Okl.Cr. 116, 56 P.2d 922, it held: "In prosecution for illegal possession of intoxicating liquor, where service of search warrant is not made by servi......