Dunn v. State

• Decision Date: 05 May 1928
• Docket Number: A-6111.
• Citation: 267 P. 279,40 Okla.Crim. 76
• Parties: DUNN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

267 P. 279

40 Okla.Crim. 76

DUNN v. STATE.

No. A-6111.

Court of Criminal Appeals of Oklahoma

May 5, 1928

Syllabus by the Court.

A search warrant is "process." It must run in the name of the state of Oklahoma to some peace officer or peace officers of the state. It can be served only by the officer mentioned in its direction, but by no other person except in aid of the officer on his requiring it, he being present and acting in its execution.

Appeal from County Court, Caddo County; R. L. Lawrence, Judge.

E. A Dunn was convicted of maintaining a place where intoxicating liquors were kept, and he appeals. Reversed and remanded.

Morgan Osmond & Morgan, of Anadarko, 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 Caddo county on a charge of maintaining a place where intoxicating liquors were kept, and was sentenced to pay a fine of $350, and to serve six months in the county jail.

Before entering upon the trial, defendant filed a motion to suppress evidence as having been obtained by an illegal search warrant. This motion was sustained in part and overruled in part. It appeared that at one time D. A. Tucker, a federal prohibition officer, filed before a justice of the peace of Caddo county an affidavit for a search warrant for defendant's premises. A search warrant in the regular form was thereupon issued directed to the sheriff or constable of Caddo county. Apparently this search warrant was never delivered to any sheriff or constable, but was delivered to Tucker, the federal prohibition officer, and by him served and a return made by him as federal prohibition officer. Some days later a complaint in the form of an affidavit, signed by the sheriff, was filed before a justice of the peace, and a search warrant was issued thereon to search defendant's premises. There was no jurat of the justice of the peace attached to this instrument to indicate that it had ever been verified, and the trial court sustained the motion to suppress the evidence obtained by this latter search warrant, and overruled the motion as to the search warrant served by Tucker as federal prohibition officer.

The question then arises, May a search warrant issued to a peace officer of the state be served by a federal prohibition officer, or a private person? The question must be answered in the negative. Article 19, c. 7 (Comp. St. 1921) regulating...