Hancock v. State

• Decision Date: 11 September 1926
• Docket Number: A-5659.
• Citation: 248 P. 1115,35 Okla.Crim. 96
• Parties: HANCOCK et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

248 P. 1115

35 Okla.Crim. 96

HANCOCK et al. v. STATE.

No. A-5659.

Court of Criminal Appeals of Oklahoma

September 11, 1926

Syllabus by the Court.

A search warrant issued on affidavit made on information and belief, and without stating facts showing probable cause, is illegal.

Intoxicating liquors seized under search warrant issued on affidavit made on information and belief is inadmissible in evidence.

A statement by defendant, when officers delivered to him a search warrant, to "go ahead and search," did not waive defendant's constitutional rights, where the search warrant was unlawfully issued, since it is not to be construed as an invitation to search premises, but rather as a statement of intention not to resist search under the warrant.

Appeal from County Court, Okmulgee County; W. A. Barnett, Judge.

H. H Hancock and another were convicted of unlawful possession of whisky, and they appeal. Reversed and remanded, with direction to dismiss.

E. M Carter and Harland A. Carter, both of Okmulgee, for plaintiffs in error.

The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE J.

The plaintiffs in error were jointly charged, tried, and convicted on a charge of unlawful possession of 3 pints of whisky, and in accordance with the verdicts they were each sentenced to confinement in the county jail for 30 days and to pay a fine of $300. To reverse the judgments they appeal and assign as error that the trial court erred in admitting incompetent evidence over the objections of the defendant and in refusing to strike such evidence, and that the verdicts returned by the jury are contrary to both the law and the evidence, and not supported by either.

The state relied for this conviction on the testimony of M. L. Lairmore and E. T. Mitchell, deputy sheriffs, admitted over defendants' objections that it was obtained by an unlawful search. Their testimony shows that they visited the defendant's place of business in Okmulgee and served a search warrant on the defendant, A. V. Hancock, who said, "Go ahead and search," and that they found more than a quart in pint bottles.

The affidavit upon which the search warrant issued was introduced and showed that it was made by M. L. Lairmore, on information and belief that the defendants did have possession of intoxicating liquor in a building occupied by them as a residence and shop, on lots 1 and 2, block 16, in the city of...