Bowdry v. State

• Decision Date: 06 March 1946
• Docket Number: A-10542.
• Citation: 166 P.2d 1018,82 Okla.Crim. 119
• Parties: BOWDRY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

166 P.2d 1018

82 Okla.Crim. 119

BOWDRY v. STATE.

No. A-10542.

Court of Criminal Appeals of Oklahoma

March 6, 1946

Appeal from Court of Common Pleas, Oklahoma County; Carl Traub Judge.

Ben Bowdry was convicted of the crime of the unlawful possession of intoxicating liquor, and he appeals.

Affirmed.

Syllabus by the Court.

1. A search warrant is process within the meaning of Const. Art 7, Sec. 19, and Title 12, Sec. 51, O.S.1941, and must run in the name of the State of Oklahoma, and under the provisions of Title 37, Sec. 84, the warrant must be directed to a peace officer in the county in which it is issued for service.

2. Under Title 74, Sec. 149, O.S.1941, the officers and members of the State Highway Patrol and such other officers and investigators as the Commissioner of Public Safety shall designate shall have the authority of other peace officers including the right and power of search and seizure, but excluding the service of civil process.

3. A specific designation in warrant directing 'state investigator' to serve same is sufficient authority for such officer to execute the warrant.

4. The name 'John Doe' may be inserted in search warrant where the name of the owner of the premises to be searched is unknown to the person making the affidavit to procure the warrant.

5. Search warrant describing premises to be searched as 'a one story frame yellow dwelling house and out buildings' located at a definite address was sufficient authority for the officers to search an automobile trailer setting by the side of the garage and within the curtilage of the dwelling house described in the warrant.

R. R Rittenhouse, of Oklahoma City, for plaintiff in error.

Randell S. Cobb, Atty. Gen., for defendant in error.

JONES Presiding Judge.

The defendant, Ben Bowdry, was charged in the Court of Common Pleas of Oklahoma County by information, with the crime of unlawful possession of intoxicating liquor. A jury was waived, the defendant was tried to the court, found guilty, and sentenced to serve a term of 30 days in the County Jail and pay a fine of $50 and costs, and has appealed.

Before the trial of this case, the defendant filed a motion to suppress the evidence obtained by the officers in a search of defendant's premises. Evidence was introduced at the hearing on this motion. After the motion was overruled, the parties stipulated that the evidence introduced at the hearing on the motion to suppress could be considered as the evidence in the case. In addition, it was stipulated that the search and seizure of the whiskey in this case was in Oklahoma County and that the officers found 840 pints of whiskey.

It is first contended that no venue was proved. Counsel who filed the brief for defendant in this court did not appear as counsel for defendant in the trial of the case, and in making this assignment of error evidently has overlooked the stipulation entered into at the time the case was submitted on its merits. It is true that there was no testimony showing venue at the hearing on the motion to suppress, but the stipulation specifically stated that the seizure of the intoxicating liquor was made in Oklahoma County.

It is next contended that the court erred in overruling the motion to suppress evidence on three grounds: First, the search warrant was void because it was not directed to and served by any proper peace officer in Oklahoma County. Second, the search warrant is void because it was a 'John Doe warrant,' and did not sufficiently and particularly describe the place to be searched. Third, the search warrant did not authorize the search of the automobile trailer where the liquor was found, but was limited to the search of 'a one story yellow frame dwelling house and out buildings.'

The search warrant is directed to 'any sheriff, constable, marshal, or policeman, or state investigator in the county of Oklahoma.' The proof showed that two investigators working out of the Department of Public Safety secured a search warrant out of the Justice of the Peace Court of Otis D. James, Justice of the Peace, in Oklahoma City, and that these two investigators, armed with the search warrant, made a search of the premises occupied by the defendant and described in the search warrant as 'a one story frame yellow dwelling house and out buildings located approximately 1/2 mile North of N.W. 23rd and Meridian street and being the first house North on East side of Meridian from 2430 N. Meridian, Adj. to Oklahoma City, in Oklahoma County, Oklahoma.'

C. C. Crabb, one of the investigators testified that he did not know the occupant of the premises and that the name 'John Doe' was inserted in the search warrant for that reason. The intoxicating liquor seized by the officers was found in an automobile trailer by the side of an old garage or chicken house...