Enochs v. State

• Decision Date: 18 July 1945
• Docket Number: A-10425.
• Citation: 161 P.2d 87,81 Okla.Crim. 111
• Parties: ENOCHS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

161 P.2d 87

81 Okla.Crim. 111

ENOCHS v. STATE.

No. A-10425.

Court of Criminal Appeals of Oklahoma

July 18, 1945

Appeal from County Court, Pontotoc County; Moss Wimbish, Judge.

Frank Enochs was convicted of the crime of the unlawful possession of intoxicating liquor, and he appeals.

Affirmed.

Syllabus by the Court.

1. The burden of proving the invalidity of a search rests on the defendant, as there is a presumption in favor of the regularity of all proceedings. Where the case-made does not contain the affidavit nor search warrant, Criminal Court of Appeals will presume that the search warrant was legal.

2. It is not necessary as a part of the State's case in chief for the State to introduce in evidence the search warrant purportedly used by officers in making the search of accused's premises.

3. It is unnecessary to produce at the trial the liquor seized by officers in search of accused's premises, where no request is made that such liquor be produced and no question is raised as to the intoxicating quality of the alleged liquors so seized; the testimony of the officers that they found a certain quantity of whiskey being sufficient proof of its intoxicating quality as against a demurrer to the evidence.

Wimbish & Wimbish, of Ada, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen for defendant in error.

JONES Judge.

The defendant, Frank Enochs, was charged in the County Court of Pontotoc County with the unlawful possession of intoxicating liquor; a jury was waived, defendant was tried, convicted and sentenced to serve 30 days in the County Jail and pay a fine of $100 and costs, and has appealed.

Three officers of Pontotoc County testified and their evidence was substantially the same. They each testified that they were armed with a search warrant for the defendant's place south of Ada. That they went to this place, which had formerly been a filling station; that the defendant was living in the station; that they made a search and found 84 pints jof tax-paid whiskey, wine, and gin. No evidence was offered on behalf of the defendant.

Counsel for defendant in their brief raised the proposition that the State failed to introduce the search warrant in evidence which was purportedly used by the officers in making the raid, and that this was fatally defective to the legality of the conviction.

The presumption is in favor of the legality of all proceedings. No motion to suppress the evidence was presented. The officers testified that they were armed with a search warrant, although the search warrant itself was not introduced in evidence. If the defendant desired to question the validity of the search, he could and should have done so by timely motion or objection before the introduction of evidence.

The burden of proving the invalidity of a search lrests on the defendant, and, where the case-made does not contain the affidavit nor search warrant, this court will presume that the search warrant was legal. Winger v State, 43 Okl.Cr. 140, 227 P. 947; Ray v. State, 43 Okl.Cr. 1, ...