Bryson v. State, A-11556

• Decision Date: 30 July 1952
• Docket Number: No. A-11556,A-11556
• Citation: 248 P.2d 253,96 Okla.Crim. 49
• Parties: BRYSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 253

248 P.2d 253

96 Okla.Crim. 49

BRYSON v. STATE.

No. A-11556.

Criminal Court of Appeals of Oklahoma.

July 30, 1952.

Rehearing Denied Sept. 24, 1952.

Syllabus by the Court.

1. An attack on the information cannot be made for the first time upon appeal, unless the information is so fundamentally defective that it wholly fails to state an offense.

2. Where the affidavit to procure a search warrant is in positive terms, one will not be permitted to go behind the affidavit and show that the officer did not have sufficient knowledge of the charges alleged in the affidavit.

3. Where one is charged with the unlawful transportation of intoxicating liquor, it is not necessary for the State to produce the identical liquor as alleged in the information before a conviction may be had for the unlawful transportation of the liquor seized. This is a question of fact to be decided by the court or jury.

Frank Leslie, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The plaintiff in error, Sam Bryson, hereafter referred to as defendant, was charged by information filed in the Court of Common Pleas of Tulsa County with the crime of unlawful transportation of intoxicating liquor, was tried before a jury, found guilty and his punishment assessed at a fine of $50 and confinement in the county jail for thirty days. Appeal has been perfected to this court.

It is first contended that the information is fatally defective. We do not find where at trial the information was ever questioned. The information was sufficient to have withstood a demurrer, but no demurrer was filed. It is too late to question the information for the first time on appeal. In the case of McGaugh v. State, 12 Okl.Cr. 96, 152 P. 140, this court said:

'The sufficiency of an information cannot be raised upon appeal, unless some foundation was laid therefor before final judgment was rendered, and where the record shows that no demurrer was interposed, and no motion in arrest of judgment was made after verdict, and no objection taken or question raised as to the sufficiency of the information in the trial court, the defects, if any, were in effect waived.'

See also: Rausch v. State, 65 Okl.Cr. 52, 82 P.2d 687.

It is next contended that the trial court erred in not sustaining defendant's motion to suppress, it being alleged that as a matter of fact the officers did not have probable cause to support the issuance of a search warrant. The material facts of the affidavit read:

'John Bell being first duly sworn, upon oath deposes and says:

'That certain intoxicating liquor is being sold, stored, transported, given away and otherwise furnished; and is being kept for the purpose of being sold, stored, transported, given away, and otherwise furnished in violation of the prohibitory laws of the State of Oklahoma, the kind and description of said intoxicating liquor being as follows, to-wit: Wine, beer, whiskey, and other intoxicating liquors, and imitations thereof and substitutes therefor, the exact quantity thereof being unknown. I have had this car under observation and have been it being used in the transportation of whiskey on the streets and alleys of Tulsa, Tulsa County, State of Oklahoma;

'That said intoxicating liquors are being disposed of and kept by one Sam Bryson and John Doe whose more full and correct name is to affiant unknown, in the manner aforesaid, in and/or on the following described motor vehicle, situated in Tulsa County, Oklahoma, to-wit: A certain 2-door Oldsmobile Sedan, bearing 1950 Oklahoma license number 42-1182 which said motor vehicle is being used in secreting, storing and transporting intoxicating liquors in and on the streets and alleys of the city of Tulsa, and the highways and roads of Tulsa County, Oklahoma.'

The affidavit was properly sworn to and is not based on information and belief, but is in clear and positive terms. We do not mean to say that it is a model by any means, as more facts might have been set out. Still the affiant swears that he has seen the car in question being used in the transportation of whiskey on the streets and alleys of Tulsa. The statement is positive and sufficient under previous holdings of this court. Hughes v. State, 85 Okl.Cr. 25, 184 P.2d 625; Griffin v. State, Okl.Cr.App., 246 P.2d 424; Le Blanc v. State, Okl.Cr.App., 245 P.2d 134.

In the first case we said [85 Okl.Cr. 25, 184 P.2d 626]:

'Where the affidavit to procure a search warrant is in positive terms, one will not be permitted to go behind the affidavit and show that the officer did not have sufficient knowledge of the charges alleged in the affidavits.'

It is finally contended by defendant that the case should be reversed for the reason that the State failed to introduce in evidence at trial the whiskey that formed the basis of the charge filed against him, and shown by the evidence to have been taken from the defendant's automobile.

Deputy sheriff Floyd Jordan had testified that he saw the defendant about 8:30 P.M., November 22, 1951, drive his motor vehicle down an alley in Tulsa and stop and defendant got out of the car, and witness then served a search...