Foster v. State

• Decision Date: 16 June 1924
• Docket Number: A-5150.
• Parties: FOSTER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

226 P. 602

27 Okla.Crim. 268

FOSTER v. STATE.

No. A-5150.

Court of Criminal Appeals of Oklahoma

June 16, 1924

Syllabus by the Court.

An affidavit for a search warrant is insufficient if made on information and belief without stating the facts on which the belief of the affiant is based, and a search warrant issued on such an affidavit is void.

Under the statute (section 7013, Comp. St. 1921) no officer is authorized 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, and no magistrate in this state has the power to issue a search warrant to search a private residence unless it is made to appear that such private residence comes within the exceptions stated in said section.

Liquor obtained by a search of defendant's residence, under a search warrant issued without authority of law for the sole purpose of obtaining evidence against him, in violation of the Bill of Rights, § 30, guaranteeing the security of the people in their right to be exempt in their persons, houses papers, and effects from unreasonable search and seizure, is inadmissible against him.

Appeal from County Court, Beaver County; J. D. Meese, Judge.

Fred Foster was convicted of unlawful possession of intoxicating liquor, and he appeals. Reversed.

D. W. Buckner, of Gate, and Loofbourrow & Loofbourrow, of Beaver, for plaintiff in error.

The Attorney General and N.W. Gore, Asst. Atty. Gen., for the State.

DOYLE J.

The information in this case charges that Fred Foster did have in his possession 16 quarts of whisky with the unlawful intent to sell the same. Upon his trial he was found guilty by the jury, but they were unable to agree upon the punishment. March 6, 1924, he was by the judgment of the court sentenced to be confined in the county jail for 60 days and to pay a fine of $300. He has been permitted to prosecute his appeal from the judgment as a poor person, but he was fortunate enough to secure the assistance of counsel who have presented his case in an excellent brief. Unable to give bond defendant is now confined in the county jail in execution of said sentence.

The first error assigned for a reversal of this judgment is the admission of evidence procured under a search warrant that is said to be illegal because of the affidavit on which it was issued. The affidavit states:

"That J. O. Karnes, being duly sworn, deposes and says, that he has good reasons to believe, and does believe, that a still for the manufacture of intoxicating liquors or mash for the purpose of making intoxicating liquors or substitutes for the same are being manufactured, sold, bartered, given away and otherwise furnished, are being kept and possessed and used in violation of the prohibitory laws of the state of Oklahoma, at the following place, to wit: Sections 26 and 27, Twp. 3 N., range 27 E. C. M., Beaver County, Okla.--now owned and occupied by Fred Foster and John Doe. That as reasons for such belief affiant states the following: Information furnished by sheriff."

On this affidavit J. D. Meese, judge of the county court, issued the search warrant in question.

The evidence shows that H. D. Bridgewater, sheriff, and J. O Karnes, undersheriff, who made the affidavit upon which the search warrant issued, went to the farm of the defendant, searched his house, and found about 4 gallons of whisky, a quart in the...