Conti v. State
| Decision Date | 02 November 1929 |
| Docket Number | A-6839. |
| Citation | 282 P. 182,45 Okla.Crim. 105 |
| Parties | CONTI v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The court clerk is without authority to issue a warrant of arrest for the defendant based upon the information charging a misdemeanor filed in the county court; and, if a motion is made before arraignment and plea to set aside the warrant so issued, it should be sustained by the court.
Although the warrant of arrest may have been issued by the court clerk without authority, if the defendant failed to file his motion to set aside such warrant before arraignment and plea, the error is waived.
The motion to suppress evidence on the ground that the affidavit for the search warrant is insufficient should be overruled where the statutory requirements and sufficient facts are stated to warrant the magistrate in making a finding of probable cause.
Testimony in the record considered, and held sufficient to sustain the judgment.
Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
Jim Conti was convicted of possessing intoxicating liquor, and he appeals. Affirmed.
Harris & Lackey, of McAlester, for plaintiff in error.
Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen for the State.
The plaintiff in error, hereinafter referred to in this opinion as the defendant, was by information charged with the unlawful possession of spirituous, fermented, malt and intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $100, and be imprisoned in the county jail for 30 days, from which judgment and sentence the defendant has appealed to this court.
The testimony on behalf of the state shows that the sheriff and his deputies went to the home of the defendant with a search warrant to search his premises, and found a half gallon of choctaw beer in the room adjoining the house, and went to the barn and found a twenty-gallon jar which was about half full of choctaw beer, and another half gallon in a jar. The testimony shows the officers tasted some of the beer and stated it was intoxicating.
The wife of the defendant was called and testified that she made the choctaw beer the officers found for her own use; that she drank it for her health; she further stated they farmed raised chickens and a few hogs. This is, in substance, all the testimony we deem necessary to set out.
The defendant has assigned several errors alleged to have been committed by the trial court; the second error assigned by the defendant being as follows: "That the court erred in overruling his motion to quash and hold for naught the warrant of arrest based upon the information filed herein for the reason that the said pretended warrant of arrest was issued, signed and served without any authority of law and conferred no jurisdiction upon the trial court to try this plaintiff of error."
The information in this case was filed on May 9, 1927, and on the same day the warrant of arrest was issued by the court clerk of Pittsburg county, Okl., upon which the defendant was arrested and the return of the officer filed...
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