Farrow v. State

• Decision Date: 02 April 1941
• Docket Number: A-9761.
• Citation: 112 P.2d 186,71 Okla.Crim. 397
• Parties: FARROW v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

112 P.2d 186

71 Okla.Crim. 397

FARROW v. STATE.

No. A-9761.

Court of Criminal Appeals of Oklahoma

April 2, 1941

Syllabus by the Court.

1. Where a search warrant does not show the justice of the peace district from which it is issued, a question of fact is presented as to whether the justice of the peace issuing the warrant acted within his district.

2. The presumption is that official acts of a justice of the peace were performed within his jurisdiction.

3. No set formula is required as to an oath verifying a complaint for a search warrant, if there is an unequivocal act whereby affiant consciously takes on himself the obligation of an oath.

4. No particular ceremony is necessary to constitute the act of swearing to an affidavit for search warrant; it is only required that something be done in the presence of the magistrate issuing the search warrant which is understood by both the magistrate and the affiant to constitute the act of swearing.

5. Where a deputy sheriff testifies on a motion to suppress the evidence that he was not formally sworn to the affidavit by raising his hand and invoking the deity, but that he had read the affidavit and signed the same, and handed it to the magistrate to procure a search warrant, and the magistrate places his jurat upon the affidavit and issues a search warrant based thereon, such affidavit is not subject to the objection that the deputy sheriff was not formally sworn to said instrument.

Appeal from County Court, of Pottawatomie County; Thomas M. Stevens Judge.

W. S Farrow was convicted of the offense of unlawful possession of intoxicating liquor, and he appeals.

Affirmed.

DOYLE J., dissenting.

Claude Hendon and Scott Hendon, both of Shawnee, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES Judge.

The defendant, W. S. Farrow, was charged by information in the County Court of Pottawatomie County, on June 5, 1939, with unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve thirty days in the county jail and to pay a fine of $100, from which judgment and sentence he appeals to this court.

Defendant assigns as error the refusal of the court to sustain the motion to suppress the evidence. The contentions are: 1. That the affidavit for search warrant does not show probable cause.

2. That the affidavit for search warrant and search warrant are insufficient in that they do not show on their face that the justice of the peace was acting within his county and district.

3. That the affidavit for search warrant was not made under oath or signed in the presence of the justice of the peace.

The affidavit in this case is from a printed form which is set out in full in Spikes v. State, 65 Okl.Cr. 254, 85 P.2d 327. This court has held specifically that such form of affidavit states sufficient evidentiary facts to show probable cause on which to base a search warrant. See Key v. State, Okl.Cr., 100 P.2d 291 (Pottawatomie County); Pitzer v. State, Okl.Cr.App., 103 P.2d 109.

As to the second assignment of error, the affidavit and search warrant were both signed "W. F. Durham, Justice of the Peace." The affidavit and search warrant are both styled: "Before me, W. F. Durham, Justice of the Peace, in and for Pottawatomie County, Oklahoma."

The justice of the peace was called as a witness upon the motion to suppress and stated that he was "Justice of the Peace, Shawnee Township." The testimony showed that the affidavit was presented to the justice of the peace and the warrant issued at the justice's home.

The deputy sheriff testified that the warrant was issued out of the Justice of the Peace Court of W. F. Durham in Shawnee.

Sec. 4136, O.S.1931, 39 Okl.St.Ann. § 6, provides: "Justices of the peace and constables shall reside and keep their offices in the district from which they are elected."

In addition to the actual proof of residence, as testified to by the justice of the peace and the deputy sheriff, it will be presumed that the residence of the justice of the peace was within his district.

In Hays v. State, Okl.Cr.App., 108 P.2d 186, 187, this court held that a search warrant which was signed, "Given under my hand at Enid, Oklahoma, this the 19th day of November, 1938. (Signed) J. S. Jacobs, Justice of the Peace," was sufficient, in that the warrant showed on its face that the justice of the peace was acting within his district.

There is no proof that the justice of the peace was acting outside of his district when he issued the search warrant. The attorney for the defendant based his contention solely upon the ground that the warrant did not recite the justice district from which it was issued.

Where the search warrant is not sufficient upon its face to show the district from which it is issued, a question of fact is presented for the trial court as to whether the justice of the peace had jurisdiction. The presumption is that the official acts of the justice of the peace were performed within his jurisdiction.

In the case of Blair v. State, 55 Okl.Cr. 280, 29 P.2d 998, 999, the Criminal Court of Appeals had up for construction an affidavit in which the title of the person administering the oath was wholly omitted; and in that case this court stated as follows:

"The justice of the peace failed to attach his title to the jurat attached to the affidavit made by the witness V. D. Firestone for the search warrant. His failure to do so did not make the statement in the complaint void, and the defect could have been cured by the court at any time its attention was directed to it by having the justice come into court and attach his title to the complaint The defendant saved the state the trouble of calling the justice of the peace by placing the witness who had sworn to the complaint on the stand, and asking him the direct question, if he had sworn to the complaint, and he answered he did.

The defendant cured the defect in the complaint, and cannot be heard to complain. Blackburn v. Commonwealth, 202 Ky. 751, 261 S.W. 277; James v. State, 188 Ind. 579, 125 N.E. 211; Warren et al. v. State, 35 Okl.Cr. 430, 251 P. 101."

The evidence is certainly sufficient to sustain the finding of the trial court that the justice of the peace was acting within his district at the time the affidavit was filed with him and he issued the warrant.

As to the third proposition that the affidavit was not made under oath, the testimony of the deputy sheriff, which is relied upon by the defendant to support this contention, is as follows:

"Q. At the time you went before W. F. Durham and presented the complaint do you recall whether or not that you were sworn by Judge Durham? A. No, sir.

Q. Were you sworn? A. No, sir.

Q. He did not ask you to hold up your hand and be sworn either on affirmation or upon oath invoking the deity, so help you God? A. I never did on any search warrant.

Q. And you did not in this case? A. No, sir.

Q. Then the purported showing that it was sworn to by you in the presence of W. H. Durham that is not correct? A. I read it. I knew what I signed."

The affidavit which was admitted in evidence was signed by the officer and by the justice of the peace with the following recital appearing above the signature of the justice of the peace: "Signed in my presence and sworn to before me, this the 3rd day of June, 1939."

At the beginning of the affidavit is the following recital: "Bill Miller, being first duly sworn, on oath, states ***."

These recitals constitute prima facie evidence that the affidavit was duly sworn to by the affiant. Blair v. State, supra.

Although this statement in the affidavit is prima facie evidence, the same is not conclusive; and the fact that the affiant was not sworn may be overthrown by clear and convincing proof to the contrary.

This identical question has never been before this court for construction, and no case is cited in the brief of the defendant from any other jurisdiction sustaining his point.

The general rule as to the validity of an affidavit is stated in 22 C.J.S., Criminal Law, § 308, p. 461, as follows: "No set formula is required as to an oath verifying the complaint if there is an unequivocal act whereby affiant consciously takes on himself the obligation of an oath. *** Where a complaint is sworn to before a magistrate, notary, or other official qualified to administer the oath, his certificate of this fact in the usual form is prima facie or...