Cole v. State

• Decision Date: 07 January 1928
• Docket Number: A-6236.
• Citation: 262 P. 712,38 Okla.Crim. 396
• Parties: COLE et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

262 P. 712

38 Okla.Crim. 396

COLE et al. v. STATE.

No. A-6236.

Court of Criminal Appeals of Oklahoma

January 7, 1928

Syllabus by the Court.

An affidavit for a search warrant, made on information and belief, is not sufficient to authorize the issuance of a search warrant, unless the affiant sets up the facts upon which his belief is based, and shows that the facts stated are within his personal knowledge, and such facts are sufficient to constitute probable cause.

No warrant shall be issued to search a private residence occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or is a place for public resort.

In this state, a defendant may be charged in an information with but one offense. An information charging more than one offense is duplicitous, and a demurrer thereto for duplicity should be sustained.

Where it is clear from the information, the evidence, the verdict and the judgment that defendant, over his objection, was tried for two separate offenses, a conviction is in violation of law, and cannot be sustained.

Appeal from County Court, Kay County; J. L. Roberson, Judge.

T. H Cole was convicted of violating the prohibitory liquor law and he appeals. Reversed and remanded.

Wieck & Armstrong, of Ponca City, for plaintiff in error.

Edwin Dabney, Atty. Gen., for the State.

EDWARDS J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county of violating the prohibitory liquor law, and sentenced to serve 90 days in the county jail, and to pay a fine of $250.

The record discloses that defendant, his wife who was jointly tried with him, and one child, resided near the town of Tonkawa. In November, 1925, an affidavit for a search warrant for the search of the quarter section of land on which defendant resided was filed with a justice of the peace, as follows:

"----------, being first duly sworn on oath, deposes and says: That as to the following described premises, to wit: S.E. 1/4, Sec. 20, Twp. 25, R. 1 W., said premises being in the possession of John Doe, a true name unknown. That your affiant was told by a person who visited the premises that while there he smelt intoxicating liquor on the premises. That your affiant has been informed that a person who visited the premises saw a still in operation in the attic of the house. Your affiant says that the general reputation of the place and premises in the community and neighborhood is that it is a place where intoxicating liquor is being kept, concealed, and sold. * * *"

An affidavit for a search warrant made on information and belief is sufficient only where it sets out the facts upon which the belief is based, and shows that such facts are within the personal knowledge of affiant or affiants, and the facts alleged are sufficient to constitute probable cause. Cornelius on Search and Seizure, § 85, p. 274.

No attempt is made to comply with the provisions of section 7013. Comp. St. 1921, which is:

"No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort."

There is no allegation that the residence or any part of it is used as a store, shop, hotel, boarding house, place for storage or place of public resort. The warrant based on this affidavit does not disclose by whom the affidavit was made, and in this particular fails to conform to section 2881, Comp. St. 1921, which provides a form for search warrant setting out the name of the person or persons...